(concurring and dissenting) .
I concur in so much of the majority opinion as affirms the conviction for possession of heroin with intent to sell and a penitentiary sentence of ten years and a fine of $5,000.00.
I am unable to agree that the two lesser offenses of possession of cocaine and marihuana with intent to sell should be voided and reversed and dismissed. Therefore I respectfully dissent.
The proof shows that these controlled substances were found at various places on the premises of the defendants. Heroin was found in the front bedroom of the house. Some of the substance was found in a shed on the premises. Marihuana was found in the bathroom where Mrs. Wells was trying to flush it down the drain. Heroin, cocaine and marihuana were found in the locked Buick car belonging to Mr. Wells, which was on the driveway in the defendant’s premises, and Mr. Wells had the keys to the car.
Mr. Wells admitted he was a drug addict and that he possessed the drugs for his own personal use.
Mr. Wells was evasive when asked on cross-examination about the drugs found in his car. We quote a part of defendant Clabon Wells’ testimony on cross-examination:
“Q. Are these items that you’ve seen introduced into evidence, were they all in your house or out in the shed?
A. I don’t recall all of them being taken from the house. Some of those probably were taken from the house.
Now, its been testified that and identified that these two, 3A, 3B and 3C, these two are Cocaine and this one is Heroin found in your car in a pouch on the side, is that true ? a
I don’t know, Sir. I don’t know where they found it. >
Well, are you — (INTERRUPTED) ©
I wasn’t at the car during the time that they searched it. I was in the house. >
Well, is it yours and was it in the car? a
I don’t know, Sir. I can’t tell. I don’t know because I wasn’t you know, at the car during the time of the search.
Also they found a hottle of empty capsules in the car. Is this yours ? ©
It’s possible. <
It’s possible. Now, that was your automobile, wasn’t it ? a
Yes, sir. >
’69 Buick Electra. ©
Right. >
Yet you’re telling this Court and jury you don’t know what was in the pouch. ©
I’m not saying that that came out of the pouch. I don’t know.
Q. Well, I’m asking you — (INTERRUPTED)
A. Cause I didn’t see it come out. I didn’t see the officers take it out, I don’t know.
Q. You didn’t see it come out. Well, are you saying somebody else put it in there ?
*523A. No, I’m not saying that anybody else put it in there.
Q. OK, now, these — this Exhibit ‘6’ identified as Heroin, the officer described as decks, found in your social security — a little packet here with your social security card, is this yours ?
A. Yes, Sir. I did have three of those in there. Those were taken from my pocket.
Q. OK, so you say these are yours?
A. Yes, Sir.
Q. And, what about the Heroin found in the bedroom, this packet here ?
A. Yes, Sir, that’s mine.
Q. That’s yours?
A. I did have some.
Q. And, what about the marihuana, is that yours ?
A. That package did come from the house, but I don’t know.
Q. You’ve never seen this before?
A. No more than just seeing it sitting here in Court.
Q. Now, it’s been testified that your wife was in the bathroom trying to flush this down the commode and it was in the houce. You’ve never seen this before ?
A. I saw it here.
Q. But you didn’t know it was in your house ?
A. No, Sir.
Q. OK, but you used marihuana, is that correct ?
A. I guess so.
Q. Well, did you have any marihuana of your own?
A. Yes, Sir, I did have marihuana of my own.”
I cannot agree that the possession of these three classes of controlled substances shown in the proof is one continuing act.
The defendants did not raise this question in their motions for a new trial.
In addition to their many assignments of error, which were overruled in the majority opinion the principal contention of the defendants was that the trial court abused his discretion in ordering the sentences to be served consecutively or cumulatively. I am unable to find where the defendants contended they could not legally be convicted and punished in three cases.
In the cases at bar, in order to find the defendants guilty of possession of heroin for sale, it was not necessary that they be found guilty of possession of cocaine or marihuana for sale.
In Acres v. State, Tenn., 484 S.W.2d 534, cited in the majority opinion, it seems that it was necessary to find the defendant guilty of robbery in order to find him guilty of first degree murder.
I would not void the two convictions of possession of cocaine and marihuana for sale.
I would affirm the convictions in all three of the cases.