Urteago v. State , 169 Tex. Crim. 160 ( 1960 )

WOODLEY, Judge.

The offense is the unlawful possession of marihuana; the punishment, five years.

The case was one of circumstantial evidence.

Police Sgt. Bailey and Policeman Wagner, in company with a Federal Narcotics Agent, went to appellant’s home with a search warrant. As they approached appellant was standing at the door of an automobile talking in through the window at the rear of his home. He had trousers on but no shirt.

The officer called upon him to stop, said: “Police officers, stop,” but instead he ran into and through the house, pursued by one of them. The officer fired a shot, but appellant made his escape. Later he turned himself in to the authorities.

Four fruit jars were found on the premises of appellant which contained marihuana. Two were dug up by an officer with his hand under a cucumber vine at the back of appellant’s house: “Captain Wagner started raking in with his hands, and we found a jar.” The other two were dug up at the edge of the garage: “I was digging along there, looked kind of fresh, and I found a gallon jar, clear jar, and another, you might say a quart jar, similar to a quart jar.”

The evidence shows that appellant purchased the premises searched and moved there about May 1, 1958, and the marihuana was found on September 25, 1958.

The testimony to the effect that the ground was freshly dug and that it could be dug with the hand, and the flight of appellant upon approach of the officers was sufficient to remove any reasonable hypothesis that the marihuana had been buried by prior occupants of the premises or had remained there without appellant’s knowledge for more than four months.

We find the evidence sufficient to sustain the jury’s finding that appellant possessed the marihuana in the fruit jars.

Other complaints relate to argument of counsel for the state to the jury.

What appear to be excerpts from such argument have been included in the transcript, but there are no formal bills of exception and no instrument bearing the signature of the trial judge or attorney which shows the argument or objection thereto.

Finding no reversible error, the judgment is affirmed.