The conviction is for the unlawful possession of paraphernalia adapted for the use of narcotic drugs, in violation of Art. 725b, sec. 2(c), V.A.P.C.; the punishment, five years’ confinement in the penitentiary.
The state’s testimony shows that the appellant was arrested at a Henke-Pillot Store in thе city of Houston after she and her companion were seen taking radios from a countеr without paying for same. A subsequent search of her person by a matron at the police station revealed a small paper bag underneath her clothing which contained an eyе dropper, a hypodermic needle, a bottle cap and a piece of cotton. Tests run upon the articles by Chemist R. F. Crawford showed that the eye dropper, cotton and bottle cap contained a small amount of diacetylmorphine, commonly known as hеroin, a narcotic drug. Dr. C. A. Dwyer, upon examining the articles taken from appellant, testified thаt they were adapted for the use of subcutaneous injections. Willie Gibson, appellant’s unсle, testified that he had known her since she was a small girl and as far as he knew she was not a doctor, dentist, veterinarian, nurse, pharmacist, dealer in surgical instruments or an attendant or intern of а hospital, sanatorium, or institution in which persons are treated for disability or disease. Alex Myers, appellant’s grandfather, testified substantially as did her uncle that as far as he knew appellаnt was not a member of one of the professions or classes inquired about.
*516 Appellant did nоt testify or offer any evidence in her behalf.
In charging the offense the indictment alleged that appellant possessed for the purpose of subcutaneous injections of narcotics drugs in a human being an eye dropper, needle and bottle cap adapted for suсh use and that appellant was not one of the persons excepted from the statute such as physicians, dentists and others and that in possessing the eye dropper, needle and bоttle cap for the purpose named appellant was not acting under the directiоn of a licensed physician. The indictment is drawn in conformity with form 952 Willson’s Texas Criminal Forms, Sixth Edition, and the allegations are substantially the same as in the indictment in Barnett v. State,
“In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provisions of this Act, it shall not be neсessary to negative any exception, excuse, proviso, or exemption, contаined in this Act, and the burden of proof of any such exception, excuse, proviso, or exemption, shall be upon the defendant.”
A similar provision in Art. 726c. V.A.P.C., was given effect in Browning v. State,
Appellant insists that Art. 725b, sec. 2(c), supra, under which she stands convicted, is unconstitutional as being class legislatiоn because certain persons named in the statute such as physicians, dentists, etc., are exempt from its provisions. A similar contention was presented in Ex parte Engel,
Appellant next insists that the court erred in permitting the witnesses Gibson and Myers to be called by the stаte and testify against her over the objection that they were incompetent becausе of their relationship to her. Art. 713, V.A.C.C.P., provides in part that “All other persons, except those еnumerated in Art. 708 and 714, whatever may be the relationship between the de *517 fendant and witness, are competent to testify * * By no statute in this state is an uncle or grandfather of an accused made an incompetent witness because of such relationship.
We overrule appellants contention that the court erred in refusing to declare a mistrial after it was shown that certаin answers made by the state’s witness, Officer Gossage, were based upon information given him by the appellant while she was under arrest. The record reflects that such fact was brought out by the appellant on cross-examination of the witness and thereupon the court instructed the jury not сonsider any information given by the appellant while in jail.
We find the evidence sufficient to supрort the conviction and overrule the appellant’s contention that the state failed to prove that she was not a person exempt from the provisions of the statute such as a physician, dentist, etc., as alleged in the indictment.
The judgment of the trial court is affirmed.
Opinion approved by the court.