King v. State, 31108

• Decision Date: 09 December 1959
• Docket Number: No. 31108,31108
• Citation: 169 Tex.Crim. 34,335 S.W.2d 378
• Parties: Peggy June KING, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 378

335 S.W.2d 378

169 Tex.Crim. 34

Peggy June KING, Appellant, v. STATE of Texas, Appellee.

No. 31108.

Court of Criminal Appeals of Texas.

Dec. 9, 1959.

Rehearing Denied Jan. 13, 1960.

Second Rehearing Denied Feb. 10, 1960.

David C. Middleton, Houston, for appellant.

Dan Walton, Dist. Atty., Lee P. Ward, Jr., Samuel H. Robertson, Jr., Asst. Dist. Attys., and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is possession of marihuana; the punishment, seven years. Appellant was indicted jointly with Carl Edward King, a severance was granted, and appellant was tried alone.

Officers of the City of Houston, armed with a search warrant, went to the address in question, knocked on the door, received no response, found that the front door was unlocked and entered. Some hour and a half later appellant and Carl Edward King drove up in front of the apartment; and some of the officers identified themselves, at which time appellant, who was driving, put the automobile in reverse and proceeded to leave the scene but was prevented from so doing when oen of the officers shot out a tire on the automobile. After appellant was captured, the search warrant was presented to the two and the search was continued. In an ashtray on a chair in the bedroom they found a cigarette butt; near the ashtray they found another, and on the seat of the chair they found particles of a loose green plant substance. In the bedroom they also found a woman's suitcase which contained women's apparel and letters addressed to appellant, some at the address where the search was made and others at Sealy, Texas. On the dresser in the room they found letters addressed to Carl Edward King and appellant at the address which was searched. From the bottom of this suitcase they recovered particles of a loose green plant. All of these particles, including the cigarette stubs, were submitted to Chemist McDonald who testified that they were marihuana, that one grain had come from the suitcase and, when combined with the particles found in the cigarette stubs, weighed three grains, which was sufficient to make a marihuana cigarette.

Appellant did not testify or offer any evidence in her own behalf.

In her brief and in argument appellant contends there was no proof that she lived at the address which was searched and therefore no proof that she possessed the marihuana found in the bedroom or in the suitcase. While it is true that one of the policemen testified he had no reason to believe that appellant and Carl Edward King were separated but did not know whether or not she was living at that address at the time because she was working out of town, we do find that appellant's counsel did not so contend at the trial for he propounded this question to one of the State's witnesses: 'Q. What time did Mrs. King return to her apartment (referring to the place which was searched)?' And on another occasion he asked another witness: 'Q. When Carl Edward King and Peggy King, his wife, this person here, the defendant, returned to their home about what time?' We also find another officer testified that he knew appellant and Carl Edward King to be husband and wife.

In connection with this contention, reliance is had upon Watson v. State, 114 Tex.Cr.R. 117, 24 S.W.2d 830. In that case, the accused's wife testified that she had no control over the beer which was found in the home which she shared with her husband, and there was no evidence from the State to refute this testimony. On the other hand, in Gentry v. State, 158 Tex.Cr.R. 112, 253 S.W.2d 862, we recognized the rule that a married woman could be convicted as a principal with her husband in the commission of a crime. In the case at bar, appellant did not testify, and we find a grain of loose marihuana in a suitcase which also contained woman's clothes and cosmetics as well as letters addressed to appellant. We also have the further fact that as soon as appellant learned the identity of the officers she fled. This we have concluded constitutes a sufficient showing that she possessed the marihuana, and it is immaterial whether she possessed it alone or jointly with her husband.

Appellant complains of the admission of the evidence as to the letters found in the suitcase. The letters themselves were not introduced in evidence. In fact, the officers testified that they left them in the apartment following the search. The officers were merely permitted to testify as to the name and address of the addressee. We find no error in this.

The affidavit for the warrant was not in the disjunctive, as appellant contends, because of the allegation which followed the description of the place intended to be searched, as follows: 'and being the building, house or place of * * *'

We have examined appellant's complaints as to jury argument and fail to find reversible error reflected thereby.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

DAVIDSON, Judge (dissenting).

Carl Edward King, the husband, and Peggy June King, the wife--appellant, here--were jointly indicted for the offense of possessing marihuana. A severance was awarded the husband, and the wife was placed upon trial. Her conviction resulted, with punishment assessed at seven years in the penitentiary.

Members of the police department of the city of Houston...