
    294 So.2d 772
    Theodore WOODWARD v. STATE.
    3 Div. 258.
    Court of Criminal Appeals of Alabama.
    May 21, 1974.
    Michael A. Sundock, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent represented here by appointed counsel, was indicted for unlawful possession of heroin, contrary to the provisions of Act 1407, Section 401(a), Acts of 1971, Regular Session, and convicted as charged. The trial court fixed his punishment at five years imprisonment in the penitentiary.

It appears from the evidence that the police officers in Montgomery, Narcotics Division, were alerted and met a plane at Dannelly Field, which arrived about 2:30 A.M. on January 24, 1973. When the plane arrived, one of the officers, E. B. Alford, disguised as an airport employee, spotted the suitcase which was identified by check numbers as property of the defendant. The disguised officer saw that the suitcase was carried to the delivery point, where the defendant presented a check and received the baggage.

He was thereupon arrested, and a search was made to ascertain the contents of the luggage. It contained, inter alia, a substance that the State Toxicologist, who was qualified as an expert, testified as being heroin as charged in the indictment.

Defendant’s possession of the heroin was a disputed evidentiary fact. The jury resolved the dispute against the defendant by finding him guilty as charged. We are unwilling to disturb the verdict. Judgment was entered pursuant to the verdict of the jury. This appeal is from that judgment.

The legality of the search of the suitcase was not challenged in the trial court by appropriate procedure or objection, and we pretermit considering the legality vel non in view of such want of challenge.

We have read the entire record, including all the evidence, and find no ruling of the court that was error. The judgment of the nisi prius court is affirmed.

The foregoing opinion was prepared by the Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

CATES, P. J., and ALMON, HARRIS and DeCARLO, JJ., concur.

TYSON, J., recuses self, as his brother Walter B. Tyson was foreman of petit jury.  