Hernandez v. State
Decision Date | 14 December 1938 |
Docket Number | No. 20038.,20038. |
Parties | HERNANDEZ v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Bee County; W. G. Gayle, Judge.
Juan Hernandez was convicted of possessing marihuana, and he appeals.
Affirmed.
Wade & Wade, of Beeville, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is possession of marihuana; the punishment, confinement in the penitentiary for two years.
No sentence appears in the record. In the absence of sentence this court is without jurisdiction.
The appeal is dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
On Motion to Reinstate Appeal.
The record having been perfected, the appeal is reinstated and the case considered on its merits.
W. J. Corrigan, constable, and J. B. Arnold, sheriff, went to appellant's home on the 7th of April, 1938, for the purpose of searching for marihuana. When appellant came to the front door they advised him that they had information he was in possession of marihuana, and that they wanted to search his house. Appellant replied: "All right; enter and search it." At this juncture we quote from the testimony of the constable, as follows:
Mr. Arnold testified that he found four cigarettes in the appellant's home. He said: "If I know marihuana, that is marihuana; but I am not positive of that." Lamar Diegel, night watchman, testified as follows:
Zaragosa Garcia, a witness for the state, testified that he went to appellant's home on two occasions during the month of January and bought some marihuana cigarettes from appellant. We quote from the testimony of said witness: Further, the witness testified: "They (referring to the cigarettes) didn't have any effect on me at all."
Appellant did not testify but introduced his wife, from whose testimony we quote, in part, as follows: She testified further that Telesfero Gomez and his wife lived in the house with witness and appellant.
We deem the evidence sufficient to support the conviction.
Appellant objected to the testimony of the officers to the effect that the cigarettes contained marihuana on the ground that they were not "qualified as experts to give such an opinion." We think the objection was properly overruled. The witnesses gave testimony showing that they were familiar with marihuana. In Miller v. State, Tex.Cr.App., 50 S.W. 704, Presiding Judge Davidson, speaking for the court, said: We quote from 11 Ruling Case Law 636: "The identification of an odor as that of a certain drug or poison may be made and testified to by any person familiar with the drug in question."
Bill of exception No. 2 relates to appellant's objection to the testimony of Zaragosa Garcia to the effect that during January of 1938 he went to appellant's home and bought marihuana cigarettes from appellant. Appellant sought through the testimony of his wife to lead the jury to believe that the other occupants of the house had placed the cigarettes in his room. Also his wife testified that she had never seen marihuana cigarettes in her home. Again, it has been observed that Garcia said: Thus it is seen that the testimony of the witness was to the effect that the cigarette he bought was like the cigarettes found in the appellant's home on the occasion of the search. In Nichols v. State, 97 Tex.Cr.R. 174, 260 S.W. 1050, 1052, it appears that McElroy, a witness for the state, testified that he saw Nichols and his son making whisky. Further, he testified that a few days later he saw Nichols and his son take some whisky across the river in a boat and saw Nichols return with some money and say that he had made a good haul. Nichols asserted that in the receipt of evidence of the latter transaction the rule against proving collateral transactions was transgressed. It appears that Nichols denied the transaction and introduced proof to the effect that the state's witness and his (Nichols') son possessed and operated the still in question. In concluding that such testimony was admissible, this court, speaking through Presiding Judge Morrow, used language as follows: ...
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