This is аn appeal from a conviction for unlawful possession of Marihuana in violation of the Uniform Narcotic Act, Burns’ Ind. Stat. Ann. § 10-3520. The affidavit in Count I charged an unlawful sale, and in Count II charged unlawful possession. In a trial by court the appellant was found guilty on Count II and sentenced to 2 to 10 years in prison. The record is silent as to the verdict on Count I.
The grounds fоr the motion for a new trial were as follows: (1) The finding of the court is not sustained by the evidence. (2) The finding of the court is contrary to law.
*381
In reviewing a case upon such allegаtions of error we must look to the facts most favorable to the State’s case.
Stone v. State
(1968),
In support of the allegation that this evidence was not sufficient to sustain the decision, appellant argues that the Statе’s case is vague, ambiguous, is a mere “inference on an inference”, and was rebutted at all points by testimony of the appellant. In reviewing a conviction this Court doеs not weigh the conflicting evidence but examines the record to see if there was sufficient evidence of
*382
probative value on each element of the crimе alleged to sustain the verdict.
Greenwalt v. State
(1965),
In
Orey v. Mutual Life Ins. Co. of New York
(1939),
“It has often been said that there is a rule of law to that effect, but the statements are so interspersed with recognition of еxceptions that we must conclude with Professor Wigmore that: ‘There is no such rule; nor can be.’ Wigmore on Evidence, 2d Ed., Vol. 1, § 41, p. 258. In an extensive note on the subject in95 A.L.R. 162 , it is said on page 182: ‘It seems clear after examination of all of the cases which have discussed the question, that there is no such general rule in the sense in which the language itself implies, and that if, in a sense, such a rule may be said to exist, the phraseology used to express it is inaccurate and misleading, and the meaning is quite different than appears upоn its face. The courts have apparently often used this phraseology merely as a convenient way of disposing of evidence which it regarded as too remоte or uncertain to prove the ultimate facts at issue. The language has become a sort of judicial slogan, used carelessly, inaccurately, and to the confusion of the profession. The statement of the rule in many of the cases, that an inference cannot be based on an inference, shows that what is meant primarily is that аn inference cannot be based upon evidence which is uncertain or speculative, or which raises a merely conjectural possibility.’
“. . . A fact may sometimes be established by circumstantial evidence more firmly and thoroughly than by direct, but conflicting evidence and when a fact is so established by inference it is as logical and reasonable a basis for further inferences of fact established by direct evidence.”
See also
Brown v. State
(1941),
*383 The- appellant further alleges that the testimony of McGowan is “a necessary link in the evidence” and without this testimony “the chain of evidence is broken”. We do not believe the testimony of McGowan was necessary to prove the appellant had possession of Marihuana. Two police officers observed the appellant in possession of a small package, observed the appellant hand it tо McGowan whom they had previously searched, observed McGowan until he returned to them, searched McGowan and found nothing except a small package. That package, in fact, contained Marihuana. The facts as developed by the State at the trial without the testimony of McGowan were sufficient to permit a reasоnable trier of fact to infer that the appellant was guilty of possession of Marihuana. Stone v. State, supra; Rogers v. State, supra.
The appellant next argues that the State was in control of McGowan and the failure to produce him at the trial gave rise to an inference that his testimony would not be favorable to the State.
The State denied that they could producе McGowan for the trial. Even if the State could have produced McGowan for the trial, the State’s failure to do so would only
permit
the trier of fact to infer that McGowan’s testimony would not be favorable to the State.
Lee v.
State (1901),
*384 The appellant’s last argument is that the verdict on the two counts is contrary to law because it is inconsistent. Count I charged that:
“. . . Lavon Buckner on or about the 23rd day of March, A.D. 1967, at and in the County of Marion and the State of Indiana, did then and there unlawfully sell and dispense unto Randy McGowan, a certain narcotic drug, to-wit: Marihuаna, a derivative of Cannabis, at a time and place when said sale was not authorized by the laws of the United States or the laws of the State of Indiana . . .” (Emphasis added.)
Count II charged that:
“. . . Lаvon Buckner, on or about the 23rd day of March, A.D. 1967, at and in the County of Marion and the State of Indiana, did then and there unlawfully and feloniously have in his possession and under his control a narcotic drug, to-wit: Marihuana, a derivative of Cannabis, and was not authorized by any law of the United States of America or the State of Indiana to have such narcotic drug in his possession or under his control . . .” (Emphasis added.)
Appellant was found guilty on Count II and the record shows no verdict on Count I. Silence of the court on Count I is equivalent to a verdict of acquittal.
Smith v. State
(1951),
“(a) It shall be unlawful for any рerson to manufacture, possess, have under his control, sell, prescribe, administer, dispense, compound or use any narcotic drug or drugs except as authorized in thе laws of the United States or the state of Indiana, or for any person to be found in a public place under the influence of narcotic drugs.” Burns’ Ind. Stat. Ann. § 10-3520.
*385 “Sale” is defined in Burns’ § 10-3519(10):
“(10) ‘Sale’ includes barter, еxchange, or gift, or offer, therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.”
“Sale” in all its definitions under the statute implies a transaction between persons, which is an additional element which need not be present in the case of possession.
The trier of fact determined that the evidence proved possession but not the additional element necessary to prove a sale. There is no inconsistency here. Appellant’s argument was presented in
Spight v. State
(1967),
Conviction affirmed.
Arterburn, Givan and Hunter, JJ., concur; Jackson, J., dissents.
Note.—Reported in