State v. WeberState v. Weber
Defendant is appealing from his conviction and sentence for possessing narcotics in violation of
He was arrested with one Thomas Herrin and Andersоn Gray and was charged with them in- the same bill of information for possession of four marijuana cigarettes and thе gleanings of marijuana. The State
Bill of Exceptions No. 1 was reserved to the overruling of an alleged objection to the State’s offer in evidence of the gleanings, or leavings, of marijuana taken from defendаnt’s pockets at the time of his arrest. However, an examination of the evidence annexed to the bill does not show that defense counsel registered an objection to the introduction of the gleanings in evidence or to any of the testimony concerning the same. Hence, the contention made under the bill may not bе reviewed, as a bill of exceptions based on the admission or rejection of evidence must be groundеd on an objection and an adverse ruling at the time the evidence is tendered. Code of Criminal Procedurе,
Bill No. 2 was taken when the Court refused to give two special charges, one allegedly covering the subject of possession of marijuana and the other the definition of the drug. This bill is identical with one of the two bills presentеd in State v. Gray, supra, by the same counsel representing defendant in this case. It was fully discussed in that matter and disposed of adversely to defendant. Therefore, as counsel does not advance anything new and fails to рoint out error in that decision, further consideration of the bill is unnecessary.
Bill of Exceptions No. 3 relates to an addition made by the district judge in granting a special charge requested by defendant. The special chаrge was to the effect that, if the information failed to allege that defendant unlawfully had in his possession a narcotic drug, no offense was charged and it would be the duty of the jury to acquit him. The judge gave the requested charge but added that, if the jury found that the information charged defendant with possession of marijuana and the gleanings оf marijuana, it would be equivalent to a finding that the information charged possession of a narcotic drug because, by. Paragraph 13 of Section 961 of Title 40 of the LSA-Revised Statutes, marijuana is defined to be a narcotiс drug. Counsel for defendant objected to the addenda to the charge and, when overruled, he reserved this bill.
We find no merit in the complaint. As a matter of fact, the requested charge was tantamount to a motion to quash the bill of information on the ground that it was sacramental to charge defendant in the language of the statute with possessing a narcotic drug, rather than with possessing marijuana, as was done. This was a question of law for the judge and not for the jury and it was correctly decided by the judge when he told the jury that the possession of marijuana wаs violative of
Bill of Exceptions No. 4 was taken to the judge’s action in overruling a motion for a new trial, which embodies and reurges the other bills of exceptions heretо-for discussed together with the usual complaint that the verdict is contrary to the law and the evidence. Notwithstаnding the well-settled jurisprudence that a complaint in a motion for a new trial that the verdict is contrary to law and evidence presents nothing for review,
Manifestly, the short answer to this contention is that the judge was not of the opinion that defendant was entitled to a new trial and he specifically so stated in his рer curiam. In addition, apart from the constitutional restriction upon our appellate jurisdiction in criminаl cases to questions of law alone,
Bill No. 5 was takеn when the Court overruled a motion in arrest of judgment in which defendant attacks the constitutionality of Act No. 30 of thе First Extra Session of 1951,
The plea of unconstitutionality of Act No. 30 of the Extra Session of 1951, on the ground аbove set forth, has already been considered and rejected by this Court in State v. Gray, supra, and State v. Lawrence,
The attack upon the sufficiency of the bill of information, in that it fails to allege that defendant unlawfully had in his possession a narcotic drug, is the identical contention made by him in his Bill of Exceptions No. 3, which we have heretofore held was not meritorious.
The conviction and sentence are affirmed.
Notes
. State v. Ricks,
. Article 7, Section 10 of the Constitution.