author: GODDARD, Judge.

text:
    DAVID WITHERSPOON, INC., Plaintiff-Appellee, v. Malcolm WOOD and Safeco Insurance Company of America, Defendants-Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    June 8, 1979.
    Charles D. Susano, Jr., Knoxville, for defendants-appellants.
    Charles E. Rader, Knoxville, for plaintiff-appellee.
   OPINION

GODDARD, Judge.

Malcolm Wood and Safeco Insurance Company of America, his bonding company, Defendants-Appellants, appeal a $1288 judgment rendered against them in favor of David Witherspoon, Inc., Plaintiff-Appellee. John Ivester Auction Company, Inc., a co-defendant, against whom a default judgment was entered, has not appealed. While there are seven assignments of error, the last six of which address specific findings and holdings of the Court, a resolution of the first assignment, hereinafter set out, is dispositive of this appeal:

The Chancellor erred in finding and holding that Malcolm Wood, and thus Safe-co Insurance Company of America, was liable to the appellee for the proceeds of the auction sale which were paid to the appellee’s agent.

The material facts of this case are practically undisputed. John Ivester Auction Company, Inc., of Shreveport, Louisiana, a company engaged in organizing and promoting auctions, organized an auction to be held in Alcoa, Tennessee, on October 21, 1976. In furtherance of this purpose, its representative solicited and obtained consignment of goods from the Plaintiff for inclusion in the sale. Five items were consigned (four of which were purchased at the sale by the Plaintiff) in accordance with a written agreement between Ivester and the Plaintiff which provided, among other things, the following:

All checks shall be made payable to John Ivester Auction Co., Inc., as Owner’s agent, shall have full authority to reclaim and resell any items not paid for as agreed in the terms of the sale. Owner understands that Auctioneers will be allowed a period of 30 days following the sale to clear all checks and purchase orders and to comply with the Uniform Commercial Code and make full settlement with Owner.

Because Ivester was unlicensed in Tennessee it employed Mr. Wood, an auctioneer licensed in Alabama, which has a reciprocity agreement with Tennessee. Mr. Wood thereupon called to inquire about a license in Tennessee and talked to Howard Reed, an investigator for the Auctioneers’ Commission. Mr. Reed testified concerning the conversation as follows:

Q Tell the Court, in your own words please, what was the substance of that conversation?
A Mr. Wood called in regard to a reciprocal agreement of his license from the State of Alabama. Tennessee has a reciprocal agreement with Alabama in regard to licenses. And during the course of the conversation, he, of course, inquired as to what would be necessary for him to get his license in the State of Tennessee. He said that he was going to conduct a sale for John Ivester Company. At that time, we told him that John Ivester was not licensed in the State of Tennessee and he would be responsible for the activities of the sale. This he agreed to so we sent him his license.

Upon obtaining his Tennessee license, Mr. Wood, who had no involvement in the collection of the bid price or the remittance to the seller, merely called the sale, collected his $300 fee plus travel expenses, and departed. When Ivester refused to remit the purchase price of the one piece of equipment which sold, the Plaintiff brought the present suit against Ivester, Wood and Safe-co.

The Plaintiff relies upon regulation 0160-1-.01 of the Rules of the Tennessee Auctioneer Commission which provides that “the Auctioneer shall be responsible for the advertising and management of the sale and account for all proceeds therefrom and shall, over his signature, issue a closing statement to the seller or sellers.”

The Defendants counter that in view of the fact that the Plaintiff appointed Ivester his agent that payment to Ivester was equivalent to payment to the Plaintiff and, consequently, they should not be liable.

This brings us to the crux of the lawsuit which is Plaintiff’s second insistence that, in light of T.C.A. 62-1901 — 62-1922, which regulate auctioneers and make it unlawful to engage in the auction business without a license, the obtaining of the contract was an unlawful act and, consequently, the contract is void.

Although the Chancellor did not specifically find that the contract was void, it is implicit in his decision. T.C.A. 62-1901(A) which defines auctioneers, is not entirely clear. However, section (E) defines auction business as “the performing of any of the acts of an auctioneer or apprentice auctioneer as defined in this section.” Included in the definition under section (A) is “negotiates or attempts to negotiate, a listing contract.” We accordingly conclude that the negotiation of the contract without a license, a specific violation of the statute for which criminal penalties are provided under T.C.A. 62-1922, renders the contract void.

Thus, in view of (1) the statutes and the regulation above mentioned, (2) the testimony that Mr. Wood knew Ivester was unlicensed, and (3) the fact that Mr. Wood was advised that he would be responsible for the sale, we think that the Chancellor was correct. Moreover, to hold as insisted by the Defendants would render any protection afforded to the public by the act a nullity, because then any unlicensed person could employ a licensed auctioneer to cry a sale and neither the licensed auctioneer nor his bonding company would have any further responsibility in the matter. We think such a result would violate both the intent and the letter of the law.

In conclusion, we have not overlooked Defendants’ insistence that even if the contract be prohibited by statute, it is not necessarily void for all purposes. In support of their insistence they cite a federal case which quotes from Biggs v. Reliance Life Ins. Co., 137 Tenn. 598, 604, 195 S.W. 174, 176 (1917), as follows:

The general rule, broadly stated, is that a contract explicitly prohibited by statute is void, and that a prohibition may be implied from the fact that a penalty is prescribed. But the rule is not an inflexible one, and mere imposition of a penalty does not of necessity, or in all circumstances, mean that a contract in contravention of the statute is so far void as to be unenforceable by any one a party to it. The courts, the statute not in terms denouncing the contract as void, may look to the indicia above referred to and gather a more limited legislative purpose, especially where it is not necessary to declare the contract absolutely void in order to accomplish the legislative design.

We believe in light of the circumstances of this case and the protection sought to be afforded the public by the statute, that it is “necessary to declare the contract absolutely void in order to accomplish the legislative design.”

For the foregoing reasons the assignments of error are overruled and the Trial Court affirmed. The costs of appeal are adjudged against the Defendants and their surety.

PARROTT, P. J. (E. S.), and SANDERS, J., concur.

       Certiorari not requested. Published with the approval of a committee of the Court appointed by the Presiding Judge.


source: Caselaw Access Project

author: FRANKS, Judge.

license: Public Domain

text:
    Bessie Morgan HOLLYFIELD, Plaintiff-Appellant, v. George PAPANTONIOU, Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    July 6, 1979.
    Permission to Appeal Denied by Supreme Court Sept. 17, 1979. '
    Dan M. Laws, Jr., Elizabethton and Walter Lee Davis, Jr., Johnson City, for plaintiff-appellant.
    Rowland E. Verran, Johnson City, for defendant-appellee.
   OPINION

FRANKS, Judge.

This appeal presents the issue of whether the failure to give notice of claim to a governmental entity (county), as required under the Governmental Tort Liability Act, is a bar to a suit against an employee (sheriff), when the entity is immune from liability for the alleged cause of action.

On August 6, 1977, defendant, in his capacity as sheriff, executed a search warrant at plaintiff’s home. Plaintiff alleges defendant inflicted injury upon her in the course of executing the warrant. She sued on theories of battery, false imprisonment and “official oppression.”

Defendant’s answer admitted the execution of the warrant but denied any wrongdoing and, by motion to dismiss, he raised the failure to give notice to the county mandated by T.C.A., § 23-3314 and the defense of immunity for official acts. Plaintiff’s counsel stipulated Carter County was covered by the Government Tort Liability Act, that no notice of the type required by the Act had been given, and the defendant was an “employee” within the meaning of T.C.A., § 23-3302.

The trial court sustained the motion on the ground that the absence of notice barred the suit as provided in T.C.A. § 23-3315. The second ground of the motion was not acted upon by the court.

On appeal, plaintiff insists the trial court erred because defendant was sued in his individual capacity only while the Act relates solely to suits against enumerated governmental entities.

Defendant asserts as a defense T.C.A. § 23-3313, which reads:

23-3313. Claim for injury — Notice. Any person having a claim for injury to person or property against a governmental entity or its employee must give written notice, as provided for in § 23-3314, to said governmental entity as a condition precedent to any recovery from said governmental entity or employees.

Facially, this provision relates both to suits including the employing governmental entity and to those against employees as individuals. However, when this section is read in context with the other sections of the Act, we conclude that notice is not required in a suit against an employee where the governmental entity is immune.

T.C.A., § 23-3311, the operative provision of the Act, removes the immunity of governmental entities for any “negligent act or omission of any employee within the scope of his employment.” However, among the specific exceptions to removal of immunity are claims for injuries which “[arise] out of false imprisonment . . ., false arrest, malicious prosecution, [and] intentional trespass . . . ”

The Act does not authorize recovery for most intentional torts, including battery and false arrest. The only possibility of recovery in these situations is by suit against the individual tort feasor, which is the approach taken by the plaintiff in this suit. Since the governmental entity, the county, was and still is fully immune to this type of suit, no reason exists to require, compliance with the provisions of the Act for causes of action which are specifically excepted from its scope.

Further support for this conclusion is found in T.C.A., § 23-3314, which outlines the actual notice procedure, and § 23-3315, which sets out the consequences of failure to give notice. T.C.A., § 23-3314 states:

A claim against a governmental entity shall be forever barred . unless notice thereof is filed within one hundred twenty (120) days after the cause of action arises . . ..” [Emphasis supplied.]

No mention is made of claims made solely against an individual employee in this section. The required notice is to be given to the governmental entity, which requirement does not extend to the individual employee. Moreover, T.C.A., § 23-3315 states:

Failure to comply fully with the notice requirements of this chapter shall be a valid and complete defense to any liability of a governmental entity which might otherwise exist by virtue of this chapter.

Nowhere in the Act is it stated that an individual employee is entitled to assert the notice defense.

The rationale for the notice requirement is implied in T.C.A., § 23-3314 and is to provide the governmental entity with sufficient information to apprise itself of the circumstances concerning an allegedly tor-tious incident for trial or settlement purposes. This is a further indication that the notice provision in the Act applies only to claims involving governmental exposure.

The privilege defense raised by defendant in his answer and the motion to dismiss was not decided by the trial court. Since the allegations of the complaint fall within one or more of the eight exceptions contained in T.G.A., § 23-3311, the validity of this defense involves issues of fact and law for determination by the trial court. See Binkley v. Hughes, 168 Tenn. 86, 73 S.W.2d 1111 (1934); State ex rel. Robertson v. Farmers State Bank, 162 Tenn. 499, 39 S.W.2d 281 (1931); Hale v. Johnston, 140 Tenn. 182, 203 S.W. 949 (1918).

We reverse the dismissal of this case and remand to the trial court for further proceedings consistent with this opinion. Costs incident to the appeal are assessed against defendant.

PARROTT, P. J. (E. S.), and GODDARD, J., concur.


author: O’BRIEN, Judge.

text:
    Dallas DREW, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 6, 1979.
    Permission to Appeal Denied by Supreme Court Sept. 17, 1979.
    John L. Norris and Robert T. McGowan, Asst. Public Defenders, Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., Charles L. Lewis, Asst. Atty. Gen., Nashville, Roger T. May and J. P. Apel, Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

O’BRIEN, Judge.

A two count indictment was returned against defendant charging him with kidnapping and armed robbery. The case was submitted to the jury on the armed robbery charge. Defendant was found guilty of simple robbery with his sentence fixed at not less than ten (10) nor more than fifteen (15) years in the penitentiary.

We have considered the two assignments of error submitted on this appeal and affirm the judgment of the trial court.

Defendant says first the trial court erred in denying his motion to strike the jury panel. It is contended that the State’s use of peremptory challenges to systematically exclude blacks from the jury panel violated defendant’s right to equal protection of the law and his right to a jury representing a cross-section of the community.

Several authorities are cited, both from this State and on a federal level to sustain this contention. We have concluded that reliance on these cases is misplaced. Defendant concedes that judicial precedent is against his theory on this issue. There is no doubt that the United States Supreme Court case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and our own cases of Johnson v. State, 3 Tenn.Cr.App. 17, 456 S.W.2d 864 (1970); and Wheeler v. State, 539 S.W.2d 812, (Tenn.Cr.App.1976) are controlling. After exploring the nature, purpose, history and desirability of the continued use and need for peremptory challenges in criminal cases the Swain court had this to say:

“. . .In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.”

In the light of our own statement in Johnson v. State, supra, cited in Wheeler, to the effect that, “there is no precedent for holding that the State cannot exercise its allotted challenges with unbridled discretion,” we are constrained to add this additional word of caution from the Swain case to be found at page 837 of Volume 85 of the Supreme Court Reporter:

“. . . We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the ease he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purpose of the peremptory challenge are being perverted, (sic) If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.”

We do not find a constitutional violation in this case.

Defendant claims that the trial court erred in showing police photographs of defendant to the jury over his objections.

This assignment is not sustained by the record. The subject photographs were shown to the victim in this case and to a police officer witness. After the issue of identity of the defendant was determined in the trial court the pictures were withdrawn from evidence although retained as an exhibit for appellate review. They were not tendered to the jury for their examination.

We overrule the assignments and affirm the judgment of the trial court.

WALKER and DUNCAN, JJ., concur.


author: WALKER, Judge.

text:
    Ester MERRIWEATHER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 14, 1979.
    Application for Permission to Appeal Denied by Supreme Court Sept. 4, 1979.
    Stanley Fink, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Nashville, Jon Kerry Blackwood and Preston Parks, Asst. Dist. Attys. Gen., Somerville, for appellee.
   OPINION

WALKER, Judge.

Ester Merriweather was convicted of grand larceny in connection with the February 27, 1978, theft of a two carat diamond ring from Younger’s Jewelers in Covington. The jury fixed her punishment at a term of three to six years’ imprisonment. In this appeal she contests the evidentiary basis for the conviction, insisting that it is insufficient to support the guilty verdict. She argues further that the trial court also erred in allowing certain portions of the state’s closing argument and in instructing the jury.

The state’s proof showed that the jewelry store manager waited on the appellant when she entered the store around 4:00 p. m., asking to see some diamond rings. The manager removed a filled tray of rings from a locked display case and Ms. Merri-weather examined them. Noticing two empty slots in the tray that was kept filled in the normal course of business, the manager asked Ms. Merriweather if she had the rings from those slots. The appellant denied having either ring, but the manager forced open her hand and recovered one of the missing rings. After answering a few questions from the manager, the appellant left the store, saying that she was on her way to the barber shop to meet her father.

The manager called the police and they apprehended the suspect near the barber shop after a scuffle with her. They returned Ms. Merriweather to the jewelry store for identification, then took her to police headquarters for questioning. The appellant initially refused to allow the officers to check inside her mouth, where they suspected she had hidden the missing ring. They later proposed taking her to the hospital for x-rays, to which she agreed on condition that the officers deliver a sheaf of business papers to her father, who was waiting in a different area of the building. Before delivering the papers, Officer John Yancey examined them and found the two carat diamond ring among them. Ms. Mer-riweather thereafter made a voluntary signed statement in which she confessed that she had taken the ring and acknowledged the knowing and uncoerced nature of her statement.

The appellant did not testify at her trial and called no witnesses in her behalf.

This evidence amply supports the trial judge’s denial of the defense motion for acquittal made at the close of the state’s proof. It is also quite adequate to support the verdict, the jury having resolved any and all conflicts in the proof by its finding of guilt. Ms. Merriweather has not shown the evidence to preponderate in favor of her innocence, and these assignments contesting the evidentiary sufficiency must be overruled. State v. Thompson, 549 S.W.2d 943 (Tenn.1977).

Equally without merit is appellant’s contention that the trial court should have allowed defense counsel to examine the jewelry store manager out of the jury’s presence concerning identification of Ms. Merriweather. Officer Yancey, having arrested a woman who fit the description given by the manager and having advised her of her rights, took the suspect to the store for a show-up identification. The manager did identify the woman under arrest as the same person who had been in the store a few minutes earlier.

The independent basis for both the show-up identification and the in-court identification, of which appellant here complains, was the manager’s contact with Ms. Merri-weather when the latter visited the store to look at the rings. The witness had had ample opportunity to observe Ms. Merri-weather at the time of the crime, provided a full and accurate description of her, and had no hesitation in identifying the appellant on either of their subsequent encounters. This assignment is without merit, there being no substantial likelihood of mis-identification under the totality of these circumstances. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 24 L.Ed.2d 401 (1972); Rippy v. State, 550 S.W.2d 636 (Tenn.1977). See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Error is assigned to the trial court's overruling defense objections to portions of the state’s closing argument. We have reviewed the entire argument. The general test to be applied is whether or not the argument could have affected the verdict to the prejudice of the appellant. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965); Conboy v. State, 2 Tenn.Cr.App. 535, 551, 455 S.W.2d 605 (1970). We do not think that it did under this record. Under the test laid down in Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976), the appellant was not prejudiced by the state’s argument. This assignment is therefore overruled.

In her two final assignments, Ms. Merri-weather argues that the trial court erred in denying her request that the jury be instructed on shoplifting as well as on grand and petit larceny, and that the court’s instruction concerning the significance of possessing recently stolen property was erroneous.

The Tennessee Supreme Court has held that shoplifting, defined in TCA 39-4235, is a lesser included offense within petit larceny. Wright v. State, 549 S.W.2d 682 (Tenn.1977). Proof either of petit larceny or shoplifting requires a showing that the value of the stolen goods is less than $100. TCA 39-4203 and 39-4235. The proof submitted in the instant case showed unequivocally that the item stolen exceeded $100 in value. Thus, the instruction on petit larceny was not applicable to these facts because there was no evidence to support it. Whitwell v. State, 520 S.W.2d 338 (Tenn.1975). Since the jury found all the elements necessary for a grand larceny conviction to be present in this case, however, the appellant was not prejudiced by the charge on petit larceny without the requested shoplifting charge. Cf. Johnson v. State, 531 S.W.2d 558 (Tenn.1975). See also State v. Mellons, 557 S.W.2d 497 (Tenn.1977), holding that the giving of instructions for which there is no evidence in the record is to be avoided.

The trial court’s charge concerning the effect of a finding of possession of recently stolen goods was as follows:

“If you find from the evidence beyond a reasonable doubt, that the property described in the indictment was stolen and, soon thereafter, was found in the possession of the defendant, such possession raises the presumption of her guilt of having stolen it, and such presumption stands until explained by the proof or by the facts and circumstances.” (emphasis supplied)

This charge, says the appellant, directly conflicts with the court’s instructions concerning her presumed innocence and her right not to testify.

The possession of recently stolen property allows the fact finder to infer that the possessor stole it. Green v. State, 512 S.W.2d 641 (Tenn.Cr.App.1974). The distinction between a legal presumption and an inference was discussed exhaustively in Bush v. State, 541 S.W.2d 391 (Tenn.1976). The court there expressly held it “improper to instruct a jury that a presumption of guilt arises, that if unexplained, is conclusive, or any words of similar import.” Bush, at 397. To avoid further problems in this area, such as the one here before us, the court adopted as a model instruction the one given in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

In Bush, supra, our Supreme Court pointed out that some of our cases holding that unexplained possession of recently stolen property raises a conclusive presumption of guilt are out of step with modern authority. In overruling those cases, the court said, in part:

“Where defendant offers an explanation, the instruction should make it clear that the jury must determine both the correctness of the inference and the weight to be given the explanation, that it is not bound to accept either and that the burden of proving guilt of the offense beyond a reasonable doubt remains on the State.”

The court in Bush held that based upon the authority of Barnes v. United States, supra, it is improper to instruct the jury that the unexplained possession of recently stolen property creates a conclusive presumption of guilt or words of similar import. As a model for our judges in framing their charges, the court quoted the trial court’s instructions found in Barnes, the pertinent part of which follows:

“ ‘Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.
“ ‘However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property.
“‘The term “recently” is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.’ ”

Tennessee Pattern Jury Instructions, Crim. 37.18, Inference from Possession of Stolen Property, is based on the guidelines laid down in Bush. In a companion case to Bush in which the term presumption had been used rather than inference, our Supreme Court held that it is not per se prejudicial error to depart from the exact language of the approved instructions. Turner v. State, 541 S.W.2d 398 (Tenn.1976).

In view of the overwhelming evidence of the appellant’s guilt, we find the respects wherein the trial court’s instruction falls short of the approved model to be harmless beyond a reasonable doubt in this case. See Turner v. State, supra.

All assignments are overruled and the judgment is affirmed.

DWYER and DAUGHTREY, JJ., concur.


author: DAUGHTREY, Judge.

text:
    Lee Roy KILGORE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 6, 1979.
    Permission to Appeal Denied by Supreme Court Sept. 24, 1979.

      Charles G. Jenkins, Sr., Francis W. Pryor, Jr., Jasper, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., William C. Killian, Asst. Dist. Atty. Gen., Pike-ville, for appellee.
   OPINION

DAUGHTREY, Judge.

The appellant, Lee Roy Kilgore, was indicted and tried for first degree murder in the shotgun slaying of one Freddie Shrum at Kilgore’s home in Marion County, Tennessee. The jury found Kilgore guilty of voluntary manslaughter and fixed his sentence at three to five years imprisonment. Kilgore made no motion for a new trial, filing instead a petition for a suspended sentence, which was denied by the trial judge after a full evidentiary hearing and the submission of a probation report.

The appellant contends that the trial judge abused his discretion in denying probation. The bill of exceptions reflects the following basis for the trial court’s ruling:

This case is a case involving . personal violence, one wherein a man was killed, and one wherein the jury found the defendant guilty of the crime of . voluntary manslaughter. ... I don’t think the Court in considering a crime of violence in determining whether or not a person [is to] be placed on probation is necessarily bound by the determination of the jury, insofar as probation is concerned. . . . [T]he crime in my opinion [merited] a more severe penalty than the jury determined. .

The judge, utilizing the standards set out in T.C.A. § 40-2904 and interpreted in Stiller v. State, 516 S.W.2d 617 (Tenn.1974), noted that Kilgore is “shown to be a good worker, shown to have a fairly good background ., has an excellent military [record], . [and has] had no further serious trouble.” However, the trial judge expressed concern about Kilgore’s abuse of alcohol, which apparently played some part in Shram’s death. He also gave considerable weight “to the fact that he who takes the life of another should generally be punished in some way for it, unless there are extreme mitigating circumstances.”

This Court has previously held that the nature and circumstances of the offense ordinarily are not a sufficient basis for the denial of probation, where the offense is one for which the legislature has provided the possibility of a suspended sentence. Mattino v. State, 539 S.W.2d 824 (Tenn.Crim.App.1976). However, in the Mattino opinion we further noted that “[c]rimes of violence against the person, or particularly heinous crimes, might indeed be the controlling factor in a probation determination.” Id. at 828.

We conclude that this dictum is applicable here, and we concur in the trial court’s determination that exceptional circumstances must be shown in order to support probation in a case involving the death of another person at the hands of the petitioner. We further concur in the trial judge’s finding that no such exceptional circumstances are present in this case. Although Kilgore’s background weighed heavily in his favor, the record of his trial demonstrates callous and violent activity on his part which might well have resulted in a verdict of first or second degree murder, had the jury been less lenient. The appellant claimed that he acted in self-defense, but his version of the shooting simply cannot be resolved with the facts in the record.

We find no abuse of discretion in this case, and, accordingly, we affirm the judgment of the trial court.

DUNCAN and TATUM, JJ., concur.


author: PER CURIAM.

text:
    The STATE of Texas, Petitioner, v. Frank O’Neal ADDINGTON, Respondent.
    No. B-6597.
    Supreme Court of Texas.
    Oct. 3, 1979.
    Rehearing Denied Nov. 7, 1979.
    James F. Hury, Dist. Atty., Gerald Burks, Asst. Dist. Atty., Galveston, for petitioner.
    Martha L. Boston, Austin, for respondent.
   PER CURIAM.

This case involves the determination of the proper standard of proof to be employed to indefinitely commit an individual under the Texas Mental Health Code, Tex.Rev. Civ.Stat.Ann. art. 5547-1, et seq. We hold that the State must prove its case by clear and convincing evidence. The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

The State of Texas filed a petition in the probate court to have Frank O’Neal Add-ington indefinitely committed to a mental hospital. The probate court submitted the case on special issues, and the jury found by “clear, unequivocal and convincing evidence” that Addington was mentally ill and that he required hospitalization in a hospital for his own welfare and the protection of others. Addington was accordingly committed to the Austin State Hospital.

On appeal the court of civil appeals reversed the judgment of the probate court and remanded the cause for trial. It held that the proper standard of proof was “beyond a reasonable doubt.” 546 S.W.2d 105.

We granted the State’s application for writ of error and reversed the court of civil appeals. We held that “preponderance of the evidence” was the proper standard in civil commitment cases. We further held that the “clear, unequivocal and convincing evidence” instruction submitted by the probate court was also erroneous, but concluded that it was harmless error as to Adding-ton since he had been committed under a standard stricter than required by law. Accordingly, the judgment of the probate court was affirmed. 557 S.W.2d 511.

Addington then filed an appeal with the Supreme Court of the United States, and that court noted probable jurisdiction. 435 U.S. 967, 99 S.Ct. 1804, 60 L.Ed.2d 323. Vacating the judgment of this court, it held that due process required a stricter standard than the preponderance standard. The court noted that it was not constitutionally necessary to apply the “unequivocal” standard or the “reasonable doubt” standard. However, the fourteenth amendment required the employment of a standard equivalent to or greater than the “clear and convincing evidence” standard in order to commit an individual involuntarily for an indefinite period to a state mental hospital. The case was remanded to this court to determine and define the precise burden to be assumed by the State. 435 U.S. 967, 99 S.Ct. 1804, 60 L.Ed.2d 323.

At this time we adopt the “clear and convincing evidence” standard of proof. It shall henceforth be employed in those civil proceedings brought under state law to commit an individual for an indefinite period to a state mental hospital. Clear and convincing evidence is defined as that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. While the state’s proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Hobson v. Eaton, 399 F.2d 781, 784 n. 2 (6th Cir. 1968); Germann v. Matriss, 104 N.J.Super. 466, 250 A.2d 424, 426 (App.Div.1968); Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, 123 (1954); In re Estate of Soeder, 7 Ohio App.2d 271, 220 N.E.2d 547, 574 (1966); Brown v. Warner, 78 S.D. 647, 107 N.W.2d 1, 4 (1961); Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 211 S.E.2d 88, 92 (1975).

Since the jury found Addington to be mentally ill under the stricter “clear, unequivocal and convincing” standard, the instruction given does not constitute harmful error. The previous opinion of this court is withdrawn and the judgment of the trial court is affirmed pursuant to Texas Rules Civil Procedure 483.


author: W. C. DAVIS, Judge. DALLY, Judge, DOUGLAS, Judge,

text:
    Judith A. LINDSAY, Appellant, v. The STATE of Texas, Appellee.
    No. 53939.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 25, 1979.
    On Rehearing Nov. 7, 1979.

      Art Brender, Fort Worth, for appellant. Tim Curry, Dist. Atty., Stephen R. Chaney, Clint Starr and Paul E. Gartner, Jr., Asst. Dist. Atty., Fort Worth, Robert Hut-tash, State’s Atty., Austin, for the State.
    William D. Kane, Jr., Asst. Dist. Atty., for the State on rehearing.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for conspiracy to commit capital murder. Punishment was assessed by the jury at seven years in the Texas Department of Corrections.

In her twenty-second ground of error, appellant contends that the trial court erred in failing to grant her motion to quash the indictment under which she was prosecuted.

The indictment alleged in part that appellant:

“did then and there with intent that a felony, to wit: capital murder for remuneration and the promise of remuneration, be committed the said Judith Lindsay did then and there agree with Kenneth G. Davis, Jewelle Beard and Larry Whittaker that the said Judith Lindsay, Kenneth G. Davis, Jewelle Beard and Larry Whittaker engage in conduct that would constitute said offense and the said Kenneth G. Davis, performed an overt act in pursuance of said agreement, to wit: by shooting Larry Lindsay with a firearm . . . ” [Emphasis added]

In her timely filed motion to quash, appellant asked the trial court to dismiss the indictment on the grounds that:

“2
“The term ‘engage in conduct that would constitute said offense’ fails to apprise the Defendant of the alleged conduct which would constitute the offense which is sought to be charged against her and thus fails to allow the Defendant to prepare her defense to said charge.
“3
“The indictment fails to state the elements of the alleged conduct which would constitute the offense allegedly conspired to by the Defendant, and thus fails to apprise the Defendant of the nature of the conspiracy which the Defendant is alleged to have participated in and of the possible proof with which (sic) she must meet in attempting to defend against said charge . . . ”

Appellant now contends that the indictment failed to apprise her of the charge against her with such particularity as to enable her to prepare her defense. This contention was timely raised and therefore the fundamental constitutional protections of adequate notice and due process are involved. Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978); Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). These fundamental protections require careful examination and consideration from the perspective of the accused. Haecker v. State, supra.

An indictment must allege facts sufficient to give the accused notice of the particular offense with which he is charged. Article 21.11, Vernon’s Ann.C.C.P. As we stated in Haecker v. State, supra:

“[i]t is not sufficient to say that the accused knew with what offense he was charged; rather, we must inquire as to whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976).”

In her motion to quash, appellant claimed that the indictment did not give her sufficient notice of the conduct or acts relied upon to constitute the offense; i. e., the conduct constituting the felony to which she and the other named persons agreed. The felony offense intended to have been committed was simply alleged as “capital murder for remuneration and the promise of remuneration.” This allegation contained no facts to put appellant on notice of what specific conduct or acts by her upon which the State would rely for conviction. In the face of a motion to quash calling this to the attention of the trial court, we hold that the trial court erred in not granting appellant’s request for allegations of her conduct which constituted the capital murder for remuneration and the promise of remuneration to have been committed by appellant.

In Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978), we held that in the face of a motion to quash timely filed the information which alleged that the defendant “ ‘did then and there unlawfully, intentionally, and knowingly torture an animal, namely, a dog’ ” was insufficient to give him notice of the specific conduct or acts upon which the State would rely to show the “torture.”

Similarly, in Amaya v. State, 551 S.W.2d 385 (Tex.Cr.App.1977), in a prosecution for welfare fraud, the information alleged that the defendant “ ‘did then and there intentionally and knowingly obtain by means of a willfully false statement’ ” public assistance to which she was not entitled. The defendant had filed an exception to this information, complaining that it did not give her sufficient notice of the precise charge against her by not setting out the specific “willfully false statement” which the defendant is alleged to have made. In reversing the conviction for the trial court’s failure to sustain the defendant’s exception to the information, we stated:

“[w]e believe that the deficiency complained of in the information before us was subject to the exception filed by the appellant. As appellant contends, and as the record reflects, the appellant was required to make many statements to the Department of Public Welfare; she was entitled, upon proper exception, to know which false statement or statements the State would rely upon for conviction.”

In the instant case, appellant was entitled, upon a timely request, to know the specific act or acts which were the basis of her agreement to “engage in conduct that would constitute said offense.” We agree that the allegation that “capital murder for remuneration and the promise of remuneration” was to have been committed is not factually sufficient to apprise her of what her role was to have been or her specific involvement in the offense of the murder for remuneration to which she agreed with others to commit.

The judgment is reversed and the cause remanded.

DALLY, Judge,

dissenting.

V.T.C.A. Penal Code, Sec. 15.02, unlike Art. 1622, V.A.P.C. (1925), requires an overt act to be committed to constitute the substantive offense of conspiracy. Except for an allegation of the overt act, I see no reason why an indictment for the substantive offense of conspiracy under the new penal code should be different than under the former penal code. Under the former penal code, this Court held that it was unnecessary to allege the means by which the conspiracy was to be accomplished. See Garza v. State, 122 Tex.Cr.R. 413, 55 S.W.2d 1042 (1932); Echols v. State, 133 Tex.Cr.R. 121, 109 S.W.2d 190 (Tex.Cr.App.1937).

Although the indictment in the instant case is drawn inartfully and is not a model — it alleges more than is necessary — the court did not err in overruling the appellant’s motion to quash the indictment. I submit that under Y.T.C.A. Penal Code, Sec. 15.02, an indictment is sufficient which alleges in pertinent part that “Judith Lindsay, did then and there with the intent to commit murder for remuneration, agree with Kenneth G. Davis, Jewelle Beard, and Larry Whittaker, that they, or one of them, would shoot Larry Lindsay with a firearm and pursuant to that agreement, Kenneth G. Davis shot Larry Lindsay with a firearm.” Such an allegation contains all of the constituent elements of the offense; i. e., (1) a person (2) with intent that a felony be committed (3) agrees with one or more persons (4) that they or one of them engage in conduct that would constitute the offense (5) and an overt act in pursuance of that agreement is performed by one or more of them.

I dissent.

Before the court en banc.

ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge,

dissenting.

Appellant was convicted of conspiracy to commit capital murder with the punishment, assessed by the jury, at seven years.

The indictment reads that appellant

“did then and there with intent that a felony, to wit: capital murder for remuneration and the promise of remuneration, be committed, the said Judith Lindsay did then and there agree with Kenneth G. Davis, Jewelle Beard and Larry Whittaker that the said Judith Lindsay, Kenneth G. Davis, Jewelle Beard and Larry Whittaker engage in conduct that would constitute said offense and the said Kenneth G. Davis, performed an overt act in pursuance of said agreement, to wit: by shooting Larry Lindsay with a firearm. . . ” (Emphasis supplied)

On original submission, the majority reversed the conviction because the indictment failed to put the appellant on notice of the specific acts or conduct which formed the basis of the agreement.

In Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1978), this Court reversed the conviction because sufficient notice was not set forth in the information. The defendant was convicted of driving while his license was suspended under Article 6687b, Section 24, V.A.C.S., and Article 6687b, Section 34, V.A.C.S. The indictment was held to be insufficient because it did not specify the facts necessary to put the defendant on notice of which of the five subsections of Article 6687b, Section 24, supra, formed the basis of the suspension.

Similarly, V.T.C.A., Penal Code, Section 19.03, lists five means by which capital murder can be committed. This indictment, however, specified which of the five subsections of Section 19.03 formed the basis of the charge. She was put on sufficient notice that she would have to defend herself against the charge of capital murder for remuneration.

It should not be necessary to specify the details of the intended offense with greater particularity than was done in the instant case. See also the indictment in Brown v. State, 576 S.W.2d 36, fn. 1 (Tex.Cr.App.1979). In Garza v. State, 122 Tex.Cr.R. 413, 55 S.W.2d 1042 (Tex.Cr.App.1932), in construing Article 1622, V.A.P.C. (1925), we held that the means by which the conspiracy would be accomplished need not be alleged. In Nisbet v. State, 170 Tex.Cr.R. 1, 336 S.W.2d 142 (Tex.Cr.App.1959), we held that the intended offense or object of the conspiracy need not be alleged with the same particularity as an indictment charging the commission of the intended offense.

In Nisbet, the defendant was charged with conspiracy to steal money and property from the City of Houston, with conspiracy to steal money and property from unknown persons, with conspiracy to accept a bribe. The indictment was sufficient because the crime of conspiracy is a single and separate offense, the gravamen of which is the agreement to commit a felony. It is a separate offense regardless of the number of intended offenses.

Here, as in Nisbet, sufficient facts have been alleged to constitute an agreement to commit a felony. A conviction for conspiracy will be sustained once proof of that agreement and an overt act in furtherance of the agreement have been introduced into evidence. V.T.C.A., Penal Code, Section 15.02. At that point, the offense of conspiracy is complete. Smith v. State, 363 S.W.2d 277 (Tex.Cr.App.1963); Witt v. State, 146 Tex.Cr.R. 627, 177 S.W.2d 781 (Tex.Cr.App.1944). The holding of Carter v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371 (Tex.Cr.App.1937), is applicable. This indictment is sufficient to put Lindsay on proper notice of the offense with which she is charged.

In the present case a conspiracy to commit murder plus the overt act pursuant to the agreement was alleged. The conspiracy to commit murder allegation was sufficient under the former statute, and the addition of the overt act made the indictment sufficient under the present statutes.

Further, a reasonable interpretation of the indictment is that for remuneration Kenneth G. Davis was hired to kill Larry Lindsay and attempted to do so by shooting him with a firearm.

The motion for rehearing should be granted and the judgment of conviction should be affirmed.

DALLY, J., joins in this dissent.

      . Sec. 15.02, V.T.C.A. Penal Code provides:
      “(a) A person commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement.”
      Sec. 19.03, V.T.C.A. Penal Code provides:
      “(a) A person commits an offense if he commits murder as defined under Section 19.-02(a)(1) of this code and:
      ******
      (3)the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.”

      . This is not a case involving a defect of substance which goes to the failure of the indictment to allege an offense, American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), nor is this the case where an attack is made upon the failure of the indictment to set out the elements of an underlying felony offense. See Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976).

      . Sec. 15.02, V.T.C.A. Penal Code provides:
      “(a) A person commits criminal conspiracy if, with intent that a felony be committed:
      “(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
      “(2) he or one or more of them performs an overt act in pursuance of the agreement.”

      . V.T.C.A., Penal Code, Section 15.02, provides:
      “(a) A person commits criminal conspiracy if, with intent that a felony be committed:
      “(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
      “(2) he or one or more of them performs an overt act in pursuance of the agreement.”
      V.T.C.A., Penal Code, Section 19.03, provides:
      “(a) A person commits an offense if he commits murder as defined under Section 19.-02(a)(1) of this code and:
      “ * * *
      “(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.”


author: CLINTON, Judge. DALLY, Judge,

text:
    Crispin GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 57225.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 26, 1979.

      Leo Villarreal, Kingsville, for appellant.
    William B. Mobley, Jr., Dist. Atty., and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was charged by indictment that in the county and on the date alleged he did “then and there knowingly and intentionally deliver to I. C. Galvan a controlled substance,” to-wit: heroin. The charge of the Court in applying the law to the facts instructed the jury to find appellant guilty if it found that he “did intentionally or knowingly deliver a controlled substance, to-wit: heroin, to I. C. Galvan, as alleged in the indictment . . .” The verdict of the jury found appellant “guilty of the offense of knowingly and intentionally delivering a controlled substance . to-wit: heroin, as charged in the indictment.” Two prior offenses having been alleged and found by the Court to be true, punishment as an habitual criminal was assessed at life imprisonment and, after motion for new trial was heard and overruled, sentence was imposed.

Upon appeal, appellant presents a single ground of error that contends that testimony from laboratory records and an exhibit purporting to report results of a laboratory analysis of a submitted substance were inadmissible. However, we find unassigned error which should be reviewed in the interest of justice that is dispositive of the appeal and, accordingly, do not directly address the ground of error that is advanced.

In Scott v. State, 534 S.W.2d 711 (Tex.Cr.App.1976) this Court considered in the interest of justice sufficiency of evidence with regard to burden of proof imposed on the State to show that the prosecution in that cause was not barred by the relevant statutes of limitation, finding propriety of doing so as follows:

“In Barbee v. State, Tex.Cr.App., 432 S.W.2d 78, 81, cert. denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed.2d 241 (1969), this Court stated:
‘While this Court does not ordinarily consider the question of sufficiency of the evidence to support a conviction as unassigned error under Sec. 13 of Art. 40.09, supra, we will do so, in view of appellant’s claim that . . there was no evidence [upon one of the essential elements of the State’s burden of proof].’ ” (Emphasis in original)

Here, it is readily apparent that the State presented no evidence whatsoever in support of its allegation in the indictment that appellant did “knowingly and intentionally deliver to I. C. Galvin” heroin.

Rather, the testimony of Galvan himself leaves no doubt that the delivery he observed by a person Galvan identified as appellant was made to one Montoya who accompanied Galvan to the premises where the transaction occurred. Specifically, Gal-van testified that after they arrived at the premises in his automobile he gave Montoya money to purchase heroin and remained in his car while he observed Montoya “walked up to the front door, knocked on it, and the defendant at this time opened the door and stood there in the doorway” and after talking to Montoya briefly “defendant went back inside the house, left the door open, and Montoya stood outside the doorway. He went back inside and was gone about four minutes, probably at the most, he came back, handed Montoya — he handed him something that I could see. Montoya handed him the money that I had given him, and the defendant walked back inside the door. Montoya walked toward me” and after he got in the car still occupied by Galvan, Montaya “handed me the small tin foil packet.”

Further, to a particularized question, Gal-van conceded:

“Q: Did he hand it over to you, Officer, or to Montoya? Would you answer my question, please sir? Did he hand it over to you?
A: No, sir, not directly to me.”

In similar circumstances this Court has held evidence sufficient to sustain a conviction of one for delivering a controlled substance to the person named in the indictment where the jury was instructed on the law of principals. Miller v. State. But here, unlike Miller the Court did not charge on the law of parties and, unlike Saddler, the evidence does not support a conclusion that Montoya and appellant were acting together in the observed transaction.

The State argued to the jury a theory of “constructive delivery” by appellant through Montoya to Galvan, illustrating the contention by analogizing from an experience commonly occurring among spectators at athletic events — a customer in the middle of a section obtaining a bag of popcorn from a vendor on the aisle. But we think that even if the popcorn analogy is correct still it is not applicable to the facts of this case.

Section 1.02(8) of the Controlled Substances Act, Article 4476-15, V.A.C.S., defines “deliver” or “delivery” as “the actual or constructive transfer from one person to another of a controlled substance . .” Here in our case, there were two actual transfers, one from appellant to Montoya and the second from Montoya to Galvan. The question is whether two such actual transfers, without more, constitute a constructive transfer from appellant to Galvan. We think not.

In holding that accommodation agency was no longer a defense in prosecution for sales under the now repealed Uniform Narcotic Drugs Act, this Court found that proof of consideration was not required as an element of the offense of sale and concluded that “a transfer merely for the accommodation of a principal-purchaser does come within the definition of ‘sale’ applicable to the offense,” thereby teaching, as applicable to the facts of this case, that when Montoya handed the packet to Galvan he engaged in an actual transfer of what turned out to be heroin and, accordingly, “delivered” it within the meaning of Sec. 1.02(8) of the Controlled Substances Act in which the element of consideration is pointedly omitted. See also Holdaway v. State, 505 S.W.2d 262, 264 (Tex.Cr.App.1974).

But the question still remains whether passage of possession of the packet from appellant through Montoya to Galvan amounted to a “constructive transfer” from appellant to Galvan. In answering this question we are unaided, so far as our research reveals, by any earlier decision of the Court construing applicable provisions of the Controlled Substances Act. We can be certain the offense of delivery of a controlled substance is not concerned with concepts of “title” in the usual sense and yet be just as certain that a “transfer” as an essential element of “delivery” contemplates that the transferor is at least aware of the existence of an ultimate transferee before he may be said to have delivered or made a delivery of a controlled substance to another through a third person. The precise point was made in People v. Alexander, 21 Ill.2d 347, 172 N.E.2d 785 (1961) when the Court pointed out and held:

“However, the evidence is also clear that Dayle (an undercover federal agent) had given Handsborough (a conduit) the money to buy narcotics for him and both of the defendants knew that Handsborough was buying the narcotics for someone else. Therefore . . . there was sufficient evidence to show a conspiracy to sell narcotics and a sale of narcotics by the defendants to Dayle, and the fact that the sale was made through Hands-borough is immaterial.”

Alexander was translated by People v. Mann, 27 Ill.2d 135, 188 N.E.2d 665, 667 (1963) into a rule that “if the supplier knows the narcotics are being purchased upon behalf of a third person, he may be charged with the sale to such third person irrespective of whether he had actual contact with or other knowledge of the ultimate receiver.”' The Mann case was decided in a fact situation very similar to the instant case except that the conduit in Mann told the seller that heroin was being bought by “somebody from up North.” In the case before us there is no evidence whatsoever of the content of conversations between Montoya and appellant or any other suggestion in the record that appellant knew that heroin was being purchased by Montoya on behalf of a third person. Thus, without allegation and evidence to support it that Montoya was acting with appellant in some fashion as suggested in, e. g., Hammonds v. State, 166 Tex.Cr.R. 499, 316 S.W.2d 423, 425 (1958) so as to be responsible for the conduct of Montoya there is simply no proof that appellant delivered heroin to Galvan, as alleged in the indictment.

The judgment of conviction is set aside and in view of insufficiency of the evidence to support a finding of guilt, this Court is required by the mandate of the Supreme Court of the United States in Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) to reform the judgment to show an acquittal.

It is so ordered.

DALLY, Judge,

concurring.

The facts concerning the transaction are as stated in the majority opinion. The evidence simply does not show that the appellant knowingly made a delivery of heroin to Galvan. There is nothing in the record to show that the appellant knew that he was making a transfer of the heroin, either actual or constructive, to Galvan. There is no evidence that the appellant had ever met Galvan or that he knew about Galvan’s role in the sale. The testimony of Galvan would have supported a conviction of the appellant either for possession of heroin or for the delivery of heroin to Montoya; but the appellant was not charged with these offenses.

In my opinion, based on the facts presented here, the evidence did not raise an issue of appellant’s culpability through the law of parties. An instruction on this subject would not have saved this conviction. Therefore the discussion of the law of parties, principles, and accommodation agency is wholly unnecessary to the decision.

I concur in the reversal of the judgment.

W. C. DAVIS, J., concurs in this opinion.

      . The exhibit complained of is the form routinely used by the Texas Department of Public Safety entitled, “Controlled Substances Submission and Report.” When completed, it reflects information contributed by the submitting officer and what purports to be result of analysis of the material submitted. The combined form thus presents both submission information that was ruled inadmissible and an analysis report that was held admissible in Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973); and unlike the situation in Williams v. State, 508 S.W.2d 83 (Tex.Cr.App.1974) our appellant here vigorously and vociferously objected to testimony from the supervisor of the laboratory as to what transpired after another chemist in the laboratory received the submission form and the material covered by it as well as to the combined form itself when offered in evidence.
      Because we reverse the judgment on fundamental error we do not further examine whether the exhibit at issue has “the indispensable fundamental trustworthiness necessary for its admission into evidence,” Coulter, supra, 494 S.W.2d at 884, but merely observe that the “submission” portion of the report, being similar to Exhibit No. 2 in Coulter, was probably not admissible, and insofar as the verdict finds the submitted substance to be heroin on a basis of laboratory analysis, it rests solely on the “report” portion of the exhibit.

      . After the State rested its case, appellant moved for an instructed verdict of acquittal, pointing out to the trial court essence of allegations in the indictment and then urging that there was “nothing in the State’s case . . . that Mr. Gonzalez delivered anything, transacted anything with Mr. I. C. Galvan” and that the testimony showed that “Mr. Montoya gave some of the foils to I. C. Galvan.” The motion was denied by the trial court without explanation. In his motion for new trial, appellant restated the assertions. Shortly after the record was completed appellant terminated employment of his trial counsel and employed other counsel to represent him on appeal. In these circumstances, that the point upon which we write and reverse was clearly called to the attention of the trial court, albeit not raised here by appellate counsel, facilitates our review of the issue in the interest of justice.

      . Defense advanced by appellant at trial was one of alibi which, in effect, in effect, contested identification testimony of Galvan. Since the jury obviously rejected that defense, we assume that the delivery witnessed by Galvan was made by appellant.

      . “The court instructed the jury on the law of principals. The evidence was sufficient to sustain the conviction of appellant for delivering LSD to Armand. Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146 (1959).” Miller v. State, 537 S.W.2d 725, 726 (Tex.Cr.App.1976).

      .As it appears in the record (S.F. 318-319):
      “This is a buying and selling situation. Again keep in mind by the term delivery here means the actual or constructed transfer from one person to another, the money went to this man’s pocket. The heroin came from this man’s hand and went into an undercover agent’s hand. * * * We have a buyer and selling is exactly what it’s like when you talk about actual and constructive delivery. I’ll give you one and example: At a football game when a vender comes up the stairs with popcorn and the man on the end wants to buy a bag of popcorn, the vender down on this end gives it to this person and she gives it to the next and on and on in turn until it gets down to the end. The popcorn is passed from here to here to here until it eventually gets down to the buyer. It may go through some other hands, but this is the buyer and this is the seller. So it doesn’t make any difference if it went through Montoya that’s still constructive delivery. It is constructive delivery of that popcorn although the vender would hand it to this person by the aisle. The defendant would have you believe that it’s delivery to this person alone, but it’s not. That popcorn it’s not that person, the heroin goes on down the line until it gets back to the buyer. Now, the buyer now has his popcorn and the seller now has his money. That is what we mean by constructive delivery.”

      . Article 725b, V.A.P.C., repealed by Texas Controlled Substances Act, Article 4476-15, V.A.C.S.

      . “A ‘sale’ occurred within the meaning of the statute when appellant ‘handed’ the morphine tablet in question to Agent Raef. Moreover, even if appellant had not received the $5.00 in question as payment for the morphine, proof would be sufficient.”

      . The facts in Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146 (1959), presented a dear case for proper application of the law of principals. In Saddler, the undercover officer made a deal directly with the defendant to buy marihuana and the defendant later dispatched an intermediary to arrange delivery. The Court in Miller v. State, 537 S.W.2d 725 (Tex.Cr.App.1976) gave a brief factual account that appeared to make that case very similar to this one. However, the Miller court concluded that with an instruction on the law of principals the evidence was sufficient, citing Saddler. That conclusion, and the citation to Saddler, are inexplicable unless we assume that the record in Miller contained facts which raised the principles issue and made the case analogous to Saddler, but those facts were not mentioned in the Miller opinion’s cursory factual recitation.


author: CLINTON, Judge. DALLY, Judge, W. C. DAVIS, Judge,

text:
    Larry Wendell FEW, Appellant, v. The STATE of Texas, Appellee.
    No. 60215.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 26, 1979.
    Rehearing En Banc Denied Nov. 7, 1979.

      Percy Foreman, Dick DeGeurin and Mike De Geurin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and J. Gordon Dees, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from an order revoking probation. Appellant was originally charged by complaint and thereafter waived indictment and consented to be prosecuted on an information. December 14, 1977 appellant entered a plea of guilty to the felony information, his punishment was assessed at 10 years confinement and a $500.00 fine and the confinement portion of punishment was probated. March 23, 1978 the State filed an amended motion to revoke probation alleging that on the stated date in Harris County appellant “did intentionally and knowingly possess a controlled substance, namely tetrahydrocannabinol.” After hearing on the motion before the same trial court and judge that assessed earlier punishment, the trial court found that appellant had violated the terms of his probation in committing the offense of “possession of a controlled substance, to-wit, tetrahydrocannabinol” and sentenced him to 10 years confinement in the Texas Department of Corrections.

By three grounds of error appellant assails validity of his original conviction by contending that there is a fatal variance between the original complaint and the felony information; that the felony information is facially void in failing to state an offense defined by the penal code, to-wit, “possession of tetrahydrocannibol [sic]” and that the felony information is facially void in failing to allege “an amount of tetrahy-drocannibol [sic]” allegedly possessed and, therefore, does not confer district court jurisdiction. Similarly, in his fourth ground of error appellant contends that the motion to revoke is facially void for failing to state an offense defined by the penal code or the controlled substances act. Not otherwise attacking sufficiency of evidence, ground of error number five contends that the proof does not show that defendant possessed tet-rahydrocannibols [sic] other than marihuana.

The first contention is ruled adversely to appellant by the holding of a divided court in Chapple v. State, 521 S.W.2d 280, 282 (Tex.Cr.App.1975) and Austin v. State, 531 S.W.2d 615, 616 (Tex.Cr.App.1975); and the unanimous opinion in Washington v. State, 531 S.W.2d 632 (Tex.Cr.App.1976)— all to the effect that since no complaint is required when an accused waives the right to be tried on an indictment and elects to be tried on an information, a faulty complaint does not vitiate the information. By the same rule and reasoning we must and do hold that where the accused waives indictment and elects to be tried on an information a variance between an underlying complaint and the information does not render the information void. Ground of error one is overruled.

The next three grounds of error, asserting that the original information and subsequent motion to revoke are each facially void, require that we examine again pertinent provisions of the Texas Controlled Substances Act. We begin our analysis with a brief restatement of relevant botanical facts in an historical context.

Cannabis sativa L. is the name bestowed on the Indian hemp plant by the Swedish botanist Carolus Linnaeus. Early and late others have asserted and claimed recognition for different species of the plant but have yet to persuade the courts that the genus Cannabis sativa L. does not embrace any other species, kind or variety of hemp plant. What all do agree on, however, is that as the plant ripens to maturity it develops within and secretes upon especially its flowering tops and leaves a resin whose chemical structure has come to be known as tetrahydrocannabinol — THC, for short. This chemical is psychoactive ingredient responsible for euphoriant and hallucinogenic properties of the plant and its products.

In one form or another substances derived from the plant have been given various names. “Cannabis” is broadly used in several other countries and in the literature to embrace the plant and many of its substances. “Marihuana” originated in Mexico and actually means a preparation of chopped leaves and stems of the plant that resembles tobacco. “Bhang” is the Indian smoking mixture of cannabis, similar to marihuana, in that it is a coarse powder derived from leaves of the plant. “Ganja” is prepared from the flowering tops of cultivated female plants and is smoked. “Char-as” is resin of the pistillate flower of specially cultivated plants that is gathered by various exotic methods from the clean uncut plant, for the superior grade, and from the tops of harvested plants for the slightly weaker grade. The former is usually shaped into tiny tapering sticks or cakes whereas the latter is sold as brownish green lumps or flattened in bags of rawhide. “Hashish” corresponds to the second grade of Indian charas and may appear as a flattened cake or a thin sheet compacted into a form that resembles the sole of a shoe, but by the time it reaches an ultimate consumer hashish has become more of a dry granular or coarse powdery substance.

When uniform narcotic drug laws were enacted in the thirties, the prohibited substance was “marihuana” in the Federal act while Texas called it “cannabis” and took note of and included varieties of cannabis known “as Marihuana, Hashish and Hasheesh,” Article 725b, V.A.P.C., 1925 as amended. But as learning improved and synthetic drugs were developed and abused, legislative bodies enacted “dangerous drug” laws. Persistent efforts led to successful synthesizing of THC about 1960, so that synthetic THC soon became available as a substitute for the organic substance. Contemporaneously, conventional wisdom held that drugs, substances and their immediate precursors should be controlled and regulated under one umbrella controlled substances act.

Accordingly, the Congress enacted the Comprehensive Drug Abuse and Control Act of 1970, 21 U.S.C. Sec. 801 et seq. and the same year the National Conference of Commissioners on Uniform State Laws recommended a uniform controlled substances act to the states, 1970 Handbook 223, 225. The format of both was to categorize substances into schedules according to prescribed criteria and each continued to deal with cannabis substances through the definition of marihuana. As did the Federal Act, the draft Uniform State Act included in its Schedule I of Controlled Substances:

“(d) Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances . . . :
******
(10) Marihuana
******
(17) Tetrahydrocannabinols”

By thus defining marihuana and listing it separate and apart from tetrahydrocannabi-nols, the clear purpose and intent of the drafters was that the latter meant and included only synthetic THC. U. S. v. Waco, 535 F.2d 1200 (9th Cir. 1976) cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). Under this statutory scheme marihuana includes everything that contains organic THC, U. S. v. Walton, 168 U.S.App.D.C. 305, 514 F.2d 201 (1975) including hashish, U. S. v. Kelly, 527 F.2d 961 (9 Cir. 1976).

Our Legislature, however, departed from the format and content of the Federal statute and proposed uniform controlled substances act. First, it defined marihuana in Sec. 1.02(17) so as to specifically exclude “the resin extracted from any part of such plant and any compound ... or preparation of the resin.” Then in listing substances in schedules, Sec. 2.03(d) enumerates separately:

“(10) Marihuana;
******
(17) Tetrahydrocannabinols and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following (stating chemical formulas for THC).”

And in listing substances in Penalty Group 2, Sec. 4.02(c) enumerates among other hallucinogenic substances:

“(N) Tetrahydrocannabinols other than marihuana and synthetic equivalents of the substances contained in the plant, or in the resinous extrac-tives of cannabis . . ”

And marihuana separately is not listed in any penalty group but is dealt with apart therefrom in Sec. 4.05.

From this format and content we must believe that drafters of the modifications, especially as pertaining to tetrahydro-cannabinols, were not aware of the purpose and intent of the National Conference of Commissioners that the term embrace only synthetic THC — otherwise they would not have added the language “and synthetic equivalents of the substances contained in the plant . . .” The additional language and insertion of the phrase “other than marihuana” in Penalty Group 2 reflects the notion that the plural “tetrahy-drocannabinols” is meant to include organic THC except in marihuana — as well as the synthetic chemical. Thus any material, compound, mixture or preparation which contains any amount of the hallucinogenic substance tetrahydrocannabinol — other than in marihuana — is within the contemplation of Penalty Group 2. So embraced, then, is any preparation that contains organic resin extracted from the plant or synthetic THC in whatever form and under whatever name. In this fashion the Legislature greatly expanded what was the more restricted definition of tetrahydrocannabi-nols in the draft uniform act and the Federal law. See Kirkland v. State, 373 S.W.2d 756, 758 (Tex.Cr.App.1963).

The Legislature further found that its category of “tetrahydrocannabi-nols” includes marihuana. So in listing organic and synthetic hallucinogenic substances in Penalty Group 2, to reflect its policy determination of lesser penalties for THC in smaller amounts of marihuana — as this Court discerned in Psaroudis, supra, — it became necessary to list the offending substances as “tetrahydrocannabinols other than marihuana.” This Court is, and has consistently held itself, bound to accept the legislative characterization or classification of prohibited substances regardless of how the scientific community views them.

Against this background, then, we turn to direct consideration of grounds of error two and three and the question is whether a charging instrument that identifies the proscribed controlled substance only as “tetrahydrocannabinol” is sufficient to allege an offense.

By definition an indictment or information is a written statement “accusing a person therein named of some act or omission which, by law, is declared to be an offense.” Art. 21.01, V.A.C.C.P. It was a familiar rule then, and still is, that “where an offense is defined by our statute (and there are none other in this State), all of the essential elements of the offense must be alleged in the indictment,” Rice v. State, 37 Tex.Cr.R. 36, 38 S.W. 801 (1897). Likewise, an indictment drawn in the language of the statute creating and defining an offense is ordinarily sufficient, Burney v. State, 171 Tex.Cr.R. 274, 347 S.W.2d 723, 725 (1961). Thus, we first note here that the information is not drawn in the language of the statute in that it omits the phrase “other than marihuana.” But, from the holding of Psaroudis, supra, the State argues that because marihuana is excluded from Penalty Group 2 by the very phrase and Sec. 5.10(a) of the Act makes it unnecessary to negate an exemption or exclusion, the information need not include the phrase “other than marihuana.” We disagree.

As already demonstrated in discussing botanical and pharmacological facts of the matter and reviewing statutory language, merely alleging THC embraces not only marihuana but every other organic and synthetic substance that is found to contain THC. The testimony of chemist McDonald in this case makes the point when he acknowledged that there was no definite “line of demarcation scientifically recognized between marihuana on the one hand and hashish on the other.” Thus, merely alleging the controlled substance as THC does not inform, define or draw the line between offenses as this Court concluded in Ex Parte Psaroudis that the Legislature meant to do and did.

The early Bice case, supra, illustrates the point. In that statutory rape case the indictment alleged every statutorily prescribed element of the offense but “other than the wife of the person.” After stating the familiar rule, set forth above, this Court pointed out that it had held “that it is incompetent for even the legislature to create an exception to this rule.” Then, after reviewing other authorities, the Rice opinion concludes:

“Applying this rule to the construction of this statute, it will be seen that the words ‘other than the wife of a person’ occur in the body of the enacting clause. The offense cannot be read without reading this . . (and) under the rule heretofore laid down, the indictment should negative the fact that the alleged injured female was the wife of the defendant.”

What the State fails to recognize in its argument is that on this subject there are two distinct rules, one or the other applicable depending upon circumstances, as was painstakingly pointed out in Lowery v. State, 79 Tex.Cr.R. 382, 185 S.W. 7 (1916):

“There are two rules, each fully and well established — one, that when a statute prescribes an offense, and also therein contains an exception or proviso which is made a constituent or necessary part of the offense, then such exception or proviso must be negatived by proper allegation in the indictment or information to make a good pleading. The second is that where the exception or proviso is not made a constituent or necessary part of the offense by the statute itself, then it is wholly unnecessary for the indictment or information to negative such exception or proviso.”

The familiar rule applied in Rice caused this Court to hold in Anderson v. State, 132 Tex.Cr.R. 37, 105 S.W.2d 258 (1937) that an indictment alleging that a permit holder sold liquor on Sunday but failed to negative the statutory part of the statute that provided “(except upon prescription of a duly licensed physician)” was fatally defective and, furthermore, .notwithstanding the fact that the act then in effect contained a provision almost identical to Sec. 5.10(a) of the Controlled Substances Act here, the Anderson opinion noting and holding:

“. . . but this court has uniformly held that where the exception is written in the body of the law, and, as said in some cases, is made a part of the enacting clause of the statute itself, we cannot give application to the terms of Sec. 9, supra. The exception is so clearly made a part of the offense, and is so plainly written into the very definition and description of the offense that one cannot be read without the other.”

So, here, the phrase “other than marihuana” is a constituent element of the offense — albeit a negative one. Having structured the statutory provisions with which we are here concerned in the manner it did, the Legislature obviously chose to delineate marihuana and other THC offenses by prescribing the latter as it did— “tetrahydrocannabinols other than marihuana.” Only in that fashion is the latter offense stated and, likewise, only in that fashion is it to be alleged by indictment or information.

Given the Legislative understanding, then, we must conclude that a charging instrument alleging possession of THC— without more, not only fails to allege an offense under state law — the felony offense of “tetrahydrocannabinols other than marihuana” — but also, because THC — without more — embraces marihuana, fails to state the elements essential to determine the jurisdiction of the court to try the case and the range of punishment which may be assessed. See Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975), following the rule of Standley v. State, 517 S.W.2d 538, 540-541 (Tex.Cr.App.1975) and its progeny, including, Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Peoples v. State, 566 S.W.2d 640 (Tex.Cr.App.1978) and, most recently, Ex Parte Barcelo, 577 S.W.2d 499 (Tex.Cr.App.1979).

For these reasons we must hold the original conviction invalid and set aside that judgment. The remaining grounds of error need not be decided but we would observe that a motion to revoke may be a less precise pleading and possession of any THC substance is unlawful — whether it misdemeanor or felony is irrelevant for the trial court that has jurisdiction to decide the motion. Similarly, once evidence is adduced by the State at hearing on motion to revoke that the defendant possessed a THC substance — whether it marihuana, hashish, or whatever — the discretion of the trial court to revoke probation is raised. That a chemist cannot draw a line of demarcation between marihuana and some other THC substance goes to the weight of his testimony, not its admissibility, and without being disputed may well be considered by the trial court to constitute that preponderance of evidence necessary to revoke probation.

It is ordered that the sentence imposed be set aside, the judgment of the trial court be reversed and prosecution on the instant information be dismissed.

DALLY, Judge,

concurring.

Appellant was originally convicted on a felony information which charged him with possession of “a controlled substance, namely tetrahydrocannabinol.” Appellant claims that this information was void because it failed to state an offense and because it was not specific enough to confer jurisdiction upon the district court. I write merely to help clarify the resolution of this issue.

Tetrahydrocannabinol, commonly referred to as THC, is a chemical term for the resin secreted by the plant Cannabis Sativa L. and THC is that plant’s key psychoactive ingredient. Marihuana is statutorily defined as the plant Cannabis Sativa L. or any of its derivatives. V.A.C.S., Art. 4476— 15, Sec. 1.02(17). If the resin, i. e., the THC, is extracted from the plant, those extracts are excluded from the definition of marihuana. Id. These extracts and their derivative preparations, such as hashish, generally contain higher concentrations of THC and are separately treated as “tetrahydrocannabinols.” Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Cr.App.1974).

Any material “other than marihuana” which contains any quantity of natural or synthetic THC is proscribed in Penalty Group 2 of the Controlled Substances Act. V.A.C.S., Art. 4476-15, Sec. 4.02(c). Possession of a substance listed in Penalty Group 2, in any quantity, is a third degree felony. Id., Sec.- 4.04. Marihuana is defined and treated outside the penalty groups of the Act and possession of a “usable quantity” of marihuana may be a third degree felony, a Class A misdemeanor, or a Class B misdemeanor, depending on the amount possessed.

This information charged possession of tetrahydrocannabinol but left out the qualifier “other than marihuana.” Marihuana, as statutorily defined, contains tetrahydro-cannabinol if its resin has not been extracted. Therefore, by leaving out the qualifying phrase, it is unclear whether this information charged the possession of marihuana or the possession of THC other than marihuana.

Possession of marihuana, unlike possession of THC other than marihuana, may or may not be a felony offense depending on the amount alleged. Where, as in this case, no amount was alleged, the information permits uncertainty as to whether the district court had jurisdiction over the case and this uncertainty renders the information void. Ex parte Barcelo, 577 S.W.2d 499 (Tex.Cr.App.1979); Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975). This specific attack on the original information may be raised on appeal from a revocation of probation. Peoples v. State, 566 S.W.2d 640 (Tex.Cr.App.1978). Although the conviction must be reversed, I do not believe that a comprehensive discussion of the nature of marihuana or of the background of current federal and state legislation is necessary to a decision in this case.

W. C. DAVIS, Judge,

dissenting.

I dissent to the majority’s conclusion that:

“. . . a charging instrument alleging possession of THC — without more, not only fails to allege an offense under state law — the felony offense of ‘tetrahy-drocannabinols other than marihuana’— but also, because THC — without more— embraces marihuana, fails to state the elements essential to determine the jurisdiction of the court to try the case and the range of punishment which may be assessed.”

The majority isolates the phrase “other than marihuana” and holds that phrase to be a constituent element of the felony offense of possession of THC. Such a conclusion is not warranted by the Controlled Substances Act. V.A.C.S., Art. 4476-15 or Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Cr.App.1974). Further, I am convinced that the majority’s interpretation of the statutory provisions is not only incorrect but also unnecessary. The issue here is not statutory construction. Our concern should be whether the appellant was properly notified that he was charged with an offense.

In three grounds of error, without citation of authority, appellant contends that both the original information and the subsequent motion to revoke probation were void on their face, claiming that an allegátion of possession of THC, without the magic words “other than marihuana” does not state an offense. The majority agrees and by broadly defining THC, holds that in the absence of the phrase “other than marihuana,” no offense is alleged.

The key to the majority’s position is the determination that the term THC embraces and includes marihuana. After a recitation of certain botanical and pharmacological facts, coupled with brief review of federal authority, the majority concludes:

“. . . merely alleging THC embraces not only marihuana but every other organic and synthetic substance that is found to contain THC.”

Therefore, concludes the majority, the “other than marihuana” language is necessary to inform the appellant he is being charged with possession of THC other than that naturally occurring in and still confined, at prosecution, to marihuana plants.

While I have no quarrel with the background material supplied by the majority, the concern here is not with the chemical composition of the marihuana plant. Rather, the issue is the legal definition of THC and whether that term used alone is sufficient to allege an offense. After a thorough examination of the Controlled Substances Act and the reasoning of the majority, I am convinced that the legal definition of THC should be:

every organic and synthetic substance found to contain tetrahydrocannabinols in any form, except marihuana.

The Controlled Substances Act deals with marihuana and THC as follows:

(1) Sec. 1.02(17), marihuana means:
“. . . the plant Cannabis sativa L., whether growing or not; the seeds thereof; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, or its seeds. However, it does not include the resin extracted from any part of such plant or any compound, manufacture, salt, derivative, mixture, or preparation of the resin; nor does it include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”
(2) Sec. 2.03(10) and (17), separately lists marihuana and THC under Schedule I.
(3) Sec. 4.02(c), Penalty Group Two, proscribed penalties for possession of THC, “other than marihuana.”
(4) Sec. 4.05, contains penalty for marihuana.

The Legislature, throughout the Controlled Substances Act, treats marihuana and THC separately. The two are listed separately in Schedule I and different penalties are proscribed for each. Such separation means only that the Legislature intended the separate treatment of marihuana and THC. Such intent is evident on the face of the definition of marihuana. Clearly, this definition includes only the green leafy substance with seeds, whether on the plant or separated, which is known commonly as grass, or pot, or marihuana. Clearly, marihuana cannot be the concentrated chemicals, or resins of the plant, nor can marihuana legally be the isolated chemical compounds. The term THC then covers these organic derivatives and is exclusive of the green plant-like substance marihuana.

Based on these interpretations of the terms marihuana and THC, the phrase “other than marihuana” is merely redundant and is not a constituent element of the felony offense of possession of THC. The terms “other than marihuana” are not necessary to an understanding of an information alleging possession of THC. The term THC stands alone and is sufficient to allege an offense. Art. 21.01, Vernon’s Ann.C.C.P. Since an allegation of possession of THC alleges an offense, the State was relieved of the burden of negating any exemption or exception by Sec. 5.10(a) of the Controlled Substances Act.

Assuming, arguendo, that THC does embrace and include marihuana, the information alleges possession of a controlled substance which is prohibited by the Controlled Substances Act. Such an allegation is sufficient to allege an offense, and if the appellant was unsure whether he was being prosecuted for possessing a green plant-like substance or a refined chemical substance, he should have filed a motion to quash the original information.

I would hold the information is sufficient to allege an offense.

      . Alleging in substance that he did . . . intentionally and knowingly possess a controlled substance, namely, Tetrahydrocannabi-nols other than marihuana. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . Alleging in substance that appellant did “intentionally and knowingly possess a controlled substance namely, Tetrahydrocannabinol.”

      . In Ex Parte Psaroudis, 508 S.W.2d 390 (Tex.Cr.App.1974) the indictment alleged that the accused delivered “hashish” to another and after assaying the structure and phrases of the Texas Controlled Substances Act in light of what was thought to be germane legislative history, this Court held that hashish is a prohibited controlled substance within the meaning of Section 4.02(c), Penalty Group 2(N). But a finding that hashish is a prohibited substance is not a holding that an indictment or, as in this case, an information alleging possession of “Tetrahydrocannabinol” or a motion to revoke probation alleging possession of “tetrahydro-cannabinol” is sufficiently definite to state an offense.

      . See generally U. S. v. Kelly, 527 F.2d 961 (9th Cir. 1976) and cases therein summarized or cited.

      . For an interesting comparison of assimilation by this Court of information then available, see Baker v. State, 123 Tex.Cr.R. 212, 58 S.W.2d 534 (1933).

      . See generally, Grindspoon, Marihuana Reconsidered, Harvard University Press, 1971, Chapter Two; Bloomquist, Marihuana, Glencoe Press, 1968, 8-10; McGlothlin, “Cannabis: A Reference,” The Marihuana Papers, The New World Library, 1966, 456.
      See also expert testimony in State ex rel. Hubbard v. Spillers, 202 S.E.2d 180 (W.Va.1974). In the instant case experienced toxicologist and chemist Floyd E. McDonald testified that in pieces of the substance he examined he found epithelial hairs present, explaining that that is the “flexible silky hair on the underside of the leaf’ of the plant.

      . McGlothlin, op. cit., supra, reported in 1965 that some 80 derivatives of THC had been synthesized.

      . The Federal Act, 21 U.S.C.A. Sec. 802 (15) is practically identical to the definition in the draft Uniform Controlled Substances Act proposed by the National Conference of Commissioners:
      “(15) The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture ... or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant ... or preparation of such mature stalks (except the resin extracted therefrom) fiber, oil, or cake, or the sterilized seed . . . ”

      .Section 204(d), 1970 Handbook at 234.

      . Thus, in law, marihuana was a “narcotic drug” in Texas for many years and long after widely regarded research held otherwise. See, e. g., Fawcett v. State, 137 Tex.Cr.R. 14, 127 S.W.2d 905 (1939); Fletcher v. State, 162 Tex.Cr.R. 100, 282 S.W.2d 230 (1955); Gonzales v. State, 163 Tex.Cr.R. 432, 293 S.W.2d 786, 787 (1956); “The statutory definition makes cannabis a narcotic drug;” Gonzalez v. State, 168 Tex.Cr.R. 49, 323 S.W.2d 55, 56 (1959): “Marihuana is a narcotic drug. Art. 725b, Secs. 13 and 14.”

      . During the course of the proceedings following filing of complaint and information and through judgment and order placing him on probation, appellant did not move to quash or otherwise except to the substance of the information as provided by, e. g., Art. 27.08. See generally, American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974) for explication of an exception to form as opposed to an exception to substance. During revocation proceeding, however, appellant did move to quash the original information and judgment as facially void on substantially the same basis now advanced in grounds of error two and three. Nevertheless, the motion to quash made at the revocation proceeding may not relate back to the original trial, so the question here is still whether the information is void for grounds asserted on appeal.

      . Explaining a “sort of an overlap,” McDonald noted a particular form of marihuana derived from specially cultivated female plants in which the THC content was greatly increased and, he continued, “Well, now, of course, some THC, if it were a rather poor extract, might be less than 6%. So you couldn’t base it entirely on the concentration of THC. I’m not exactly sure where you could draw the line. It’s sort of an overlapping area.”

      . Lowery was convicted for unlawfully prescribing morphine to an habitual user under an indictment that did not include the statutory proviso to the effect that it was not unlawful for an authorized practitioner to prescribe such substances for the treatment of the habitual user. This situation came under the second rule, so the court held the indictment need not negative the proviso.

      . Dealing with the problem we have decided in this case, although we are not called upon to determine and do not necessarily do so, an indictment or information should be sufficient if it met other requisites and then described the offense as “a controlled substance, to-wit: a material, compound, mixture and preparation, other than marihuana, containing tetrahydro-cannabinol, commonly known as-”

      . As the majority notes, the legal definition of a drug may be at variance with the scientific meaning; however, this Court is bound by the legislative characterization. See footnote 10 of majority opinion.

      . Revisions of Schedule I under Sec. 2.03(d) by the Commissioner of the Texas Department of Health dated August 21, 1978, reinforce this distinction.

      .The majority relies to some degree on Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Cr.App.1974). That case held that the language “other than marihuana” excluded only the legally defined plant substance, not the refined hashish.