Spangler v. State , 135 Tex. Crim. 36 ( 1938 )

Conviction is for possessing marijuana, punishment being one year in the penitentiary.

The evidence shows that if appellant was in possession of marijuana it was on the 28th day of April, 1937. He was tried and convicted on the 14th day of September, 1937.

The law in force at the time of the commission of the alleged offense was enacted by the 43d Legislature, page 609, Chapter 204, and found in Volume 2, Vernon's Ann. Texas P. C. as Article 725a. The punishment fixed by said law for the possession of marijuana — for a first offense — was by fine not exceeding two thousand dollars, or by imprisonment in the penitentiary for not more than five years, or by both such fine and imprisonment.

In 1937 the 45th Legislature, by House Bill No. 440, passed the Uniform Narcotic Drug Act, expressly repealing the heretofore mentioned Act of the 43d Legislature, which repealing act became effective on the 20th day of August, 1937, which was before appellant was convicted.

Appellant urges that the act for which he was convicted was a misdemeanor offense under the law in force when it was committed. We have examined the Act of the 43d Legislature and fail to find therein where said offense is denominated as a misdemeanor. Appellant appears to rely on Section 17 for support of his contention. Said section reads as follows:

"Every person who visits or resorts to any place described in the foregoing Section for the purpose of using, smoking or in any way taking habit-forming drugs as defined in this Act, shall, upon conviction, be guilty of a misdemeanor and shall be penalized according to the provisions of Section 8 of this Act."

Appellant was not prosecuted under Section 17, but under Section 1, Art. 725a, subdivision (b), which made it a felony to possess marijuana. The Uniform Narcotic Drug Act (45th Legislature) having expressly repealed the Act of the 43d Legislature would have resulted in exempting appellant from punishment for the offense committed while said Act of the 43d Legislature was in effect had the Act of the 45th Legislature substituted no other penalty for said offense. (See Article 14, P. C.) But the Act of the 45th Legislature was substituted for the Act of the 43d Legislature, and still made the possession of marijuana a felony offense and substituted a more severe punishment, that of confinement in the penitentiary for not less than two nor more than ten years, (See Article 15, P. C.) hence appellant was properly tried under the law which was in effect when the offense was committed. See Articles 13 and 15, P. C., and Mervin Ash v. State, No. 19294, opinion on rehearing March 30, 1938 [134 Tex.Crim. Rep.].

Finding no errors in the record the judgment is affirmed.

ON MOTION FOR REHEARING.