Ramirez v. State, 19899.

• Decision Date: 09 November 1938
• Docket Number: No. 19899.,19899.
• Citation: 125 S.W.2d 597
• Parties: RAMIREZ v. STATE.
• Court: Texas Court of Criminal Appeals

125 S.W.2d 597

RAMIREZ v. STATE.

No. 19899.

Court of Criminal Appeals of Texas.

November 9, 1938.

Commissioners' Decision.

Appeal from District Court, Karnes County; S. B. Carr, Judge.

Ramon Ramirez was convicted of unlawful possession of marihuana, and he appeals.

Affirmed.

R. Tuck Chapin, of Karnes City, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The conviction is for unlawful possession of marihuana. The punishment is confinement in the state penitentiary for a term of three years.

Appellant's first and main contention is that the court erred in declining to sustain his motion to quash the indictment and to peremptorily instruct the jury to acquit him on the ground that there was no law in effect at the time of the commission of the offense prohibiting the possession of marihuana. That Art. 725a, P.C., as amended by the 42nd and 43d Legislature's, chapter 97 and chapter 204, was expressly repealed and Art. 725b, P.C., enacted by the 45th Legislature, c. 169, p. 333, Vernon's Ann.P.C. art. 725b (which adjourned on May 22, 1937), did not go into effect until 90 days after adjournment, which would be August 20th. This identical question was before this court in the case of Spangler v. State, 117 S.W.2d 63, and decided adversely to his contention. We see no good reason for again discussing the question.

By bill of exception number one, appellant complains of the testimony given by the sheriff of Karnes County to the effect that he saw marihuana growing in the garden which belonged to appellant. That he first arrested appellant's brother and then went to appellant's place of business and arrested him. That he started toward appellant's home and on the way, appellant told him he had planted marihuana seed and had some of it growing on his place; that after he had arrived at appellant's home, he had two men pull up over three hundred of the plants. This testimony was objected to on the grounds that he was under arrest at the time. The objection was overruled and the testimony admitted on the theory that appellant told the officer that he had marihuana growing on his place and by reason of said statement the officers found it.

If the officer found the marihuana as a result of the information he received from appellant, the testimony objected to would be admissible. It is a well settled rule in this state that where an offense has been committed and the accused, although under arrest, makes a statement which leads to the discovery of the fruits of the crime or the instrument with which it was committed, such statement is admissible against him. See Sweat v. State, 115 Tex. Cr.R. 130, 29 S.W.2d 756; Newman v. State, 119 Tex.Cr.R. 299, 45 S.W.2d 602; Davis v. State, 130 Tex.Cr.R. 253, 93 S.W. 2d 154; Walker v. State, 125 Tex.Cr.R. 273, 67 S.W.2d 867.

If the officer had theretofore discovered the marihuana growing on appellant's...