Opinion
No. 15800.
Delivered March 22, 1933.
Narcotic Drug — Indictment.
Indictment charging the sale or possession of a narcotic drug without naming the particular drug so possessed or sold held insufficient.
Appeal from the District Court of Gregg County. Tried below before the Hon. Reuben A. Hall, Judge.
Appeal from a conviction for selling a narcotic drug; penalty, confinement in the penitentiary for five years.
Reversed and cause dismissed.
The opinion states the case.
R. E. Dickson, of Longview, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for selling a narcotic drug; punishment, five years in the penitentiary.
The Legislature, in defining the term "narcotic drug," makes it include many drugs specifically named. In other words, by the very terms of the act, which is chapter 97, Acts Regular Session, 42nd Legislature, "narcotic drug" is made a generic term, in which case, under many authorities, it is not enough that one indicted for a violation of the provisions of said act be charged with possession, sale, etc., of narcotic drugs; but such indictment should go further and name the particular drug so possessed, or sold in the particular case. Brewer v. State, 5 Texas App., 248; McAfee v. State, 38 Tex.Crim. Rep.; Dixon v. State, 21 Texas App., 517; Kennedy v. State, 86 Tex. Crim. 450; Todd v. State, 89 Tex.Crim. Rep.; Stanford v. State, 99 Tex.Crim. Rep.. The indictment in the instant case should have added to the averment that a narcotic drug was possessed, a further allegation such as, towit, morphine — or whatever drug was involved.
The indictment being insufficient, the judgment is reversed and the cause dismissed.
Reversed and dismissed.