
    W. S. Hudson, Jr. v. State
    No. 31,876.
    April 20, 1960
    
      W. D. Hollars, Plainview, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge

Appellant waived a jury and pleaded guilty to the indictment alleging the unlawful possession of marihuana and was assessed a term of three years in the penitentiary.

The evidence offered by the state was to the effect that appellant was observed by Police Officer Burson as he was being led across the street in Plainview.

Officer Burson testified that appellant was under the influence of intoxicating liquor and was carrying a pistol; that he arrested appellant, and when they got to the police station a cigarette was taken out of a pocket of appellant’s coat.

The cigarette was introduced in evidence. The chemist who tested it, and whose qualifications were stipulated, testified that it contained marihuana.

Appellant was asked by the court who gave him the marihuana, to which appellant replied “I don’t know, I just stopped and asked some of them for beer.

“THE COURT: They just hand out marihuana?
“DEFENDANT: I bought them a beer and we drank it.
“THE COURT: They gave you the marihuana?
“DEFENDANT: Yes, sir.”

The contention is advanced that the evidence is insufficient to sustain a conviction upon appellant’s plea of guilty because the state failed to offer any evidence that appellant knew or ought to have known that the cigarette contained marihuana.

Appellant, in his testimony, referred to the cigarette as mari-auana which was given him. His testimony did not raise the issue of his having received it innocently, without knowing or believing it to be marihuana.

As we view the record, appellant’s only ground to complain is the court’s failure to probate the sentence. This was a matter within the discretion of the trial judge.

The judgment is affirmed.  