Getters v. State

• Decision Date: 02 November 1960
• Docket Number: No. 32228,32228
• Citation: 170 Tex.Crim. 331,340 S.W.2d 806
• Parties: Henry GETTERS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 806

340 S.W.2d 806

170 Tex.Crim. 331

Henry GETTERS, Appellant, v. STATE of Texas, Appellee.

No. 32228.

Court of Criminal Appeals of Texas.

Nov. 2, 1960.

Rehearing Denied Dec. 14, 1960.

[170 TEXCRIM 331] Frederick W. Robinson, Houston, for appellant.

Dan Walton, Dist. Atty., Carl E. F. Dally, Lee P. Ward, Jr., Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was convicted as a second offender under the Uniform Narcotic Drug Act, Art. 725b, Vernon's Ann.P.C., for the unlawful possession of marihuana and his punishment assessed at confinement in the penitentiary for 10 years.

The State's proof shows that on the date alleged, Officers Gray and Stringfellow, of the Narcotics Division of the Houston Police Department, went to the appellant's apartment with a search warrant to search for narcotic drugs. When the officers arrived, appellant and a Negro female were present in the apartment. During the search, Officer Gray noticed that the appellant kept looking at a dresser in the room, whereupon he went to the dresser and found in an open candy box on top of the dresser two brown paper packages which contained some seeds, a leafy substance, and two small brown strips of cigarette paper. Officer Gray, who had been assigned to the narcotics division for five and one-half years, testified that in his opinion the seeds in the packages were marihuana seeds and that the leafy substance was marihuana. Officer Stringfellow testified that the two packages contained enough marihuana leaves, if used with the seeds, to make a marihuana cigarette and that the two small brown pieces of paper resembled pieces of paper which had been torn from a marihuana cigarette. A chemical and microscopic examination of the contents of the two packages by Chemist Robert F. Crawford of the Houston Police Department showed that the packages contained approximately five grams of marihuana seed and 35 particles or leaf fragments of marihuana. Chemist Crawford testified that the 35 leaf fragments of marihuana were visible to the naked eye; that although he did not weigh them, they might weigh as much as 2/100 of a gram. He stated that the 35 leaf fragments would not make a marihuana cigarette. He further stated that the marihuana seeds contained no narcotics and that he was unable to say whether they were viable. It was shown by the testimony of Officers Gray and Stringfellow that the users of narcotics in the Houston area smoked marihuana seeds in marihuana cigarettes.

The prior alleged conviction of appellant was stipulated.

Testifying as a witness in his own behalf, appellant denied that he possessed any narcotics in his apartment.

[170 TEXCRIM 333] Appellant's sole contention on appeal is that the evidence is insufficient to sustain his conviction.

Appellant first contends that his conviction cannot be sustained upon proof that he possessed the marihuana seeds because of the absence of any proof that the seeds were viable and capable of germination. In support of his contention, appellant refers to the Federal Statute, sec. 4761(2), Title 26 U.S.C.A., which, in defining the term 'marihuana', expressly excludes the sterilized seed of such plant which is incapable of germination.

The Uniform Narcotic Drug Act, Art. 725b, supra, in defining a narcotic drug, provides in sec. 1(14) that the same means, among other drugs, 'Cannabis', and in sec. 1(13) provides in part as follows: 'The term 'Cannabis' as used in this Act shall include all parts of the plant Cannabis Sativa L., whether growing or not, the seeds thereof, * * *. The term 'Cannabis'...