89 So. 2d 48 | La. | 1956
Lead Opinion
The defendant was convicted under a bill of information charging him with the possession of a narcotic drug, to-wit: the dried form of the plant known as marijuana in violation of LSA-R.S. 40:962 and sentenced to serve a term' of twelve' years in the State Penitentiary. He has appealed.
During the course of the trial, the defendant reserved five bills of exception. Two bills of exception (Nos. 1 and 3) were taken to the ruling of the trial judge overruling the defendant’s objection to the admission of the testimony of two expert wit
Bill of Exception No. 2 was reserved to the Court’s ruling permitting the introduction of the gleanings of marijuana found in the possession of the defendant on the ground that the substance had not been identified at any time during the trial as part of the Mexican plant known as marijuana.
The ruling in the recent case of State v. Peltier, 229 La. 745, 86 So.2d 693, handed down on February 20, 1956,. is controlling herein. Since the testimony showing the facts and circumstances leading to the introduction of these exhibits are not included in the bill of exceptions or an-, nexed to it and made a part thereof, this bill is without merit.-
Both the motion in arrest of judg-' ment, Bill of Exception No. 4, and the motion for a new trial, Bill of Exception No. 5, present the same question, viz.: that the bill of information does not specifically and affirmatively charge or impute guilty knowledge of the accused of possession of a narcotic drug, relying on State v. Johnson, 228 La. 317, 82 So.2d 24. This identical question was passed upon in. State v. Peltier, supra, and this argument was held to be without merit when the bill of information was couched in the language of the statute and the information charged that the defendant did unlawfully, possess a narcotic drug. In the present case the information charges that the defendant did “Unlawfully, wilfully and feloniously possess a narcotic drug.”
The record reflects that at the time the request was refused defense counsel was present and made no objection nor reserved any bill. It is settled that where an accused acquiesces in a ruling and makes no objection and reserves no bill of- exception he cannot raise any objection after conviction on a motion in arrest of judg^ ment. See State v. Sears, 220 La. 103, 55 So.2d 881, and the numerous authoritiés cited therein.
For the reasons assigned, the conviction and sentence are affirmed.
Rehearing
On Application for Rehearing
On application for rehearing defendant says that it was proper to raise for the first time in the motion in arrest of judgment his objection to the ruling of the trial judge refusing the request of the jury to reexamine for size the clothing offered in evidence. Counsel may be correct in this contention, as the request of the jury and the ruling of the judge are shown in the minutes of the court. However, we are still of the view that defendant by failing to object to the judge’s ruling at the time it was announced is considered to have acquiesced by his silence in such ruling.
Rehearing denied.