Appellant insists that on the original submission of this cause we misconstrued her testimony and as a result erred in holding that the trial judge committed no error in failing to instruct the jury that if samples numbers two and three contained substances other than marihuana, then to acquit her.
She contends that sample number two contained ruda, while sample number three, which the sheriff obtained from her garage, was anias. The chemist who analyzed these samples testified that all of them contained cannabis sativa, commonly known as marihuana. He also testified that samples numbers two and three contained some other ingredients, unknown to him.
It is our opinion that this testimony clearly demonstrates the fact that she possessed marihuana. It is of no consequence what she called the contents of the samples; the fact remains that they contained marihuana. Calling a certain substance by one name, when in fact and in truth the substance proves to be another, would not require the trial court to give a charge to the jury thereon. She might just as gracefully have maintained that calling a cantaloupe a watermelon would necessitate a charge by the court that it was a watermelon.
The testimony of the chemist unequivocally shows the presence of marihuana in each of the samples. Consequently, there was no necessity for the trial judge to charge in accordance with her contention.
All other matters urged by appellant in her motion have been considered by us and deemed to be without merit.
Accordingly, the motion for a rehearing will be overruled.
The foregoing opinion of the Commission of Appeals has *Page 205 been examined by the Judges of the Court of Criminal Appeals and approved by the Court.