
    Robert Edward TURNER v. STATE.
    7 Div. 249.
    Court of Criminal Appeals of Alabama.
    June 28, 1974.
    Love, Love & Lawrence, Talladega, for appellant.
    William J. Baxley, Atty. Gen. and Richard F. Calhoun, Sp. Asst. Atty.'Gen., for the State.
   ON REHEARING

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

The original opinion, released on May 21, 1974, is hereby withdrawn and held for naught. This opinion is substituted therefor.

Appellant-defendant was indicted for unlawfully possessing for sale or selling five plastic bags of marijuana, contrary to the Alabama Controlled Substances Act. Marijuana is one of the controlled substances enumerated in § 204 (Schedule 1) (d), Act No. 1407, Volume 3, page 2378, General Acts of 1971.

The indictment charges “that before the finding of this Indictment Robert Edward Turner, alais (sic) Bobby Turner, * * *, on, to-wit: the 3rd day of September, 1972, at a place located near Cho-colocco Creek, * * *, did unlawfully possess for sale or did sell, to-wit: 5 plastic bags of Marijuana weighing in the aggregate amount of, to-wit: 83.13 grams, to Robert Patterson * * *

The jury returned a verdict of guilty as charged. The court fixed punishment at seven years imprisonment in the penitentiary. Judgment was duly entered in harmony with this verdict. This appeal followed.

Appellant for the first time calls to our attention the fact that the trial court refused to permit the disclosure of the name of the informer who went with the narcotics agent to purchase the marijuana. The evidence discloses that the informer was present when the alleged sale was made and received a portion of the contraband.

An issue of identity of the instant appellant was involved.

Under authority of Davis v. State, 51 Ala.App. 532, 287 So.2d 243, the trial court committed reversible error in his ruling.

Application for rehearing is granted; the judgment is reversed, and the cause is remanded.

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.

Application for Rehearing Granted.

Reversed and remanded.

All the Judges concur.  