Fernandez v. State ( 1952 )

ON MOTION FOR REHEARING.

BELCHER, Judge.

Appellant again insists that the admission in evidence of the marihuana cigarette was error. He contends that the cigarette in question was only admitted for the purpose of proving its identity. A review of the statement of facts reveals the following testimony by witness Bolán:

“Q. What did you find as a result of this search? A. One marihuana cigarette in his stockings.

“Q. Are you familiar with marihuana cigarettes? A. I am.

“Q. You took one cigarette from him? A. Yes sir.

“Q. Where was it concealed? A. Under the sock, laying flat against his leg, in there, (indicating).

“Q. I here show you a cigarette, and ask you if you can identify that as being the cigarette that was taken from Abel Fernandez? A. Yes sir.”

There was no objection made to the admission of the above evidence.

Following the above testimony, there was a stipulation “that the cigarette identified by Mr. Bolán is the same and identical cigarette that is now in the possession of Mr. McDonald of the Department of Public Safety, that if Mr. Scarborough, Sheriff, were in court he would testify that on receiving this cigarette, he, in turn, handed it personally to Mr. J. H. Bridges, Texas Ranger, and that Mr. Bridges proceeded to transmit this same cigarette to the Department of Public Safety for examination.”

This stipulation was not a limitation upon the introduction of the cigarette, but was made for the purpose of tracing the possession of the cigarette from the sheriff to the chemist.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.

Opinion approved by the Court.