Opinion
44501.
SUBMITTED JUNE 4, 1969.
DECIDED SEPTEMBER 22, 1969. REHEARING DENIED OCTOBER 8, 1969.
Possessing marihuana. Fulton Superior Court. Before Judge Wofford.
Wendell C. Lindsey, for appellants.
Lewis R. Slaton, District Attorney, Carter Goode, Tony H. Hight, for appellee.
Each of the defendants was convicted and sentenced for five years and a $2,000 fine for the unlawful possession of marihuana, prohibited by the Uniform Narcotic Drug Act (Ga. L. 1967, p. 325). Each appeals from the overruling of his motion for new trial.
1. The defendants enumerate as error the trial court's failure to charge the jury, without request, that their verdict had to be unanimous. The record does not show that the jury's verdict was not unanimous, and this, if true, could have been shown by the defendants exercising their right to poll the jury after the verdict and before the jury had dispersed. See Hammond v. State, 166 Ga. 213 ( 142 S.E. 895); Webb v. State, 166 Ga. 218 ( 142 S.E. 898). This enumeration shows no error.
2. The defendant Morgan contends that the court should have charged specifically on his defensive testimony that he did not know what was in the package in his possession, found to contain marihuana. The court did charge the jury that they would be authorized to convict if they found the defendant "did knowingly and unlawfully possess" (emphasis supplied) any quantity of the drug. The case upon which the defendant relies, Thompson v. State, 16 Ga. App. 832 ( 84 S.E. 591), is not controlling. That holding appears to be that the court's failure in the charge to allude to a defense contended by the defendant was error where the defense was not "properly submitted to the jury in other parts of the charge." The trial court did not err in omitting to charge specifically on the defendant's testimony. Gilmore v. State, 117 Ga. App. 67 ( 159 S.E.2d 476); Thomas v. State, 126 Ga. 90 (2) ( 54 S.E. 813); Findley v. State, 59 Ga. App. 390, 393 ( 1 S.E.2d 37).
3. Neither the record nor the defendants' argument on the other enumerations of error shows error.
Judgment affirmed. Jordan, P. J., and Whitman, J., concur.