
    Glen Maurice Kirkpatrick v. State
    No. 32,230.
    October 26, 1960
    No attorney for appellant of record on appeal.
    
      Dan Walton, District Attorney, Carl E. F, Dally, Jon N. Hughes, Assistants District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state.
   DAVIDSON, Judge.

Unlawful possession of marijuana is the offense, with punishment assessed at ten years in the penitentiary.

Appellant was one of five persons in the garage apartment at the time it was searched by the officers. A quantity of marijuana was found therein.

Appellant neither owned nor was in possession or control of the premises; he was a visitor in the apartment.

The state does not contend that appellant was guilty of the possession of the marijuana found in the apartment but, rather, bases its case upon the possession of two marijuana cigarettes found in his personal possession at the apartment, as shown by the testimony of Officer Smith, one of the searching officers, who testified as follows:

“A. He [appellant] was sitting on his right hand. When I asked him to stand up and let me see what he was sitting on, a cellophane package dropped to the floor out of his hand.
“ [Q. I show you what has been marked for identification purposes as State’s Exhibit No. 1 and look inside and see if you can identify the contents.] A. Yes, sir.
“[Q. Is that the two cigarettes you saw this defendant, Glen Maurice Kirkpatrick, drop?] A. Yes, sir.”

The evidence showed that the cigarettes contained marijuana, and the above testimony was sufficient to authorize the jury to convict appellant for possessing marijuana.

Under such facts, any question as to the legality of the search passes out of the case and is therefore deemed not before us for determination.

The judgment is affirmed.  