Pelham v. State, 28695
| Decision Date | 06 February 1957 |
| Docket Number | No. 28695,28695 |
| Parties | Joel Dean PELHAM, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
William H. Scott, Jr., Houston, for appellant.
Dan Walton, Dist. Atty., Eugene Brady, Thomas D. White, Assts. Dist. Atty., Houston, and Leon Douglas, State's Atty., Austion, for the State.
This is a conviction for the unlawful possession of marijuana.
Appellant was the driver of an automobile which police officers of the city of Houston saw run a red light. The officers pursued and stopped the automobile. There were three other occupants in the car. The automobile was the property of the mother of Mantooth, who was seated by the side of appellant. The other two occupants were on the back seat.
As the police officers pursued the automobile, someone on the back seat was seen to shake newspapers out the window of the car and then throw out the newspapers. What was flying from the newspapers was not identified other than as being 'dust of some type.' A search of the vicinity where the dustings were thrown from the car revealed nothing.
One of the officers testified that when he put his head in the car he smelled 'burning marijuana' and that on the rear seat of the car there was found a small quantity of dustings and seed of marijuana.
All the parties in the automobile were arrested and taken to the police station. A search of their respective persons and an examination of the clothing of appellant's three companions revealed no marijuana.
One of the officers scraped some dustings from appellant's right front pants pocket with a knife. With the aid of a microscope, a chemist was able to find particles of marijuana among the scrapings. He was unable, however, to express any opinion as to the amount or weight of the marijuana particles found in the scrapings. He would not express the opinion that there was as much as a grain of marijuana therein.
It is a reasonable interpretation of the facts that the amount of marijuana found in the particles scraped from appellant's pocket was infinitesimal.
In submitting this case to the jury the trial court defined the term 'possession' as being 'the actual personal control, care and management of the marijuana alleged to have been possessed.'
Under such definition, any marijuana that was found upon the rear seat of the automobile, being therefore not in appellant's personal care, was thereby eliminated from consideration.
Moreover, this case was not submitted upon nor was appellant's guilt in any manner made to depend upon the possession of marijuana by any of the other occupants of the automobile, under the law of principals.
It is apparent, therefore, that appellant's guilt must depend upon the marijuana that was found in the scrapings taken from the lining of his pocket.
Appellant challenges the sufficiency of the evidence to support the conviction, insisting that the minute particles of marijuana found in the scrapings did not constitute marijuana, within the meaning of the statute.
The legislature has not prescribed or limited by statute, the amount of marijuana necessary to be possessed in order to constitute the unlawful act of possession of marijuana.
We know that the use commonly made of marijuana is to smoke it in cigarettes; it is not taken internally or by hypodermic, as are other narcotics. Such being true, we have concluded that the reasonable construction and interpretation to be applied here is that the legislature intended that to constitute the...
To continue reading
Request your trial
-
Cooper v. State
...810 (1963).6 State v. Moreno (1962), 92 Ariz. 116, 374 P.2d 872; Edelin v. U.S. (D.C. 1967), 227 A.2d 395; Pelham v. State (1957), 164 Tex.Cr.App. 226, 298 S.W.2d 171.7 People v. Leal (1966), 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665; People v. Aguilar (1963), 223 Cal.App.2d 119, 35 Cal......
-
King v. State
...Court has addressed possession cases in which the amount of the substance was too small to be seen or measured. See Pelham v. State, 298 S.W.2d 171 (Tex.Crim.App.1957); Greer v. State, 163 Tex.Crim. 377, 292 S.W.2d 122 (1956). In Pelham, we held that the amount of substance possessed must b......
-
State v. Vance
...(1962); Edelin v. United States, 227 A.2d 395 (D.C.App.1967); Watson v. State, 88 Nev. 196, 495 P.2d 365 (1972); Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957). These cases involved statutes that were silent as to the quantity of drug necessary to constitute a violation. In Peopl......
-
State v. McCarthy
...a usable quantity); Edelin v. United States, 227 A.2d 395, 399 (D.C.App.1967) (microscopic traces of heroin); Pelham v. State, 164 Tex.Crim. 226, 228-29, 298 S.W.2d 171 (1957) (unusable amount of marihuana not within meaning of possession statute); Greer v. Texas, 163 Tex.Crim. 377, 378, 29......