specially concurring.
I would not have accepted review in this case. The principal assignment of error relates to Edmonds’ testimony regarding what Lyda said when the defendant and all others were present in the car and within the hearing of each other. Defendant contends this testimony by Edmonds was hearsay and, therefore, inadmissible. Edmonds testified as follows:
“Mr. Lyda mentioned the fact that the sack contained some twigs of stems and seeds from which the shipment, the last purchase of his marijuana that he had bought to make the cigarettes, was contained in the paper sack, and that it was for sale for a dollar, and he said that there was approximately a match box full of twigs and stubble in the sack.”,
and later:
“Q And it is your recollection of Mr. Lyda’s statement that the material in the sack were the twig stems and seeds from the marijuana out of which the cigarettes were made?
“A Yes, sir.”
The court, sitting without a jury, found the defendant guilty. In essence, the Court of Appeals held that the above testimony “was relevant as a circumstance tending, together with those described * # * to establish defendant’s belief that it was marijuana and his intent to buy it when, simultaneously with his examining what was in it, he paid $1 for the paper sack and its contents.” At the time of trial the defendant objected to the testimony but made no motion to *39establish or limit the purpose for which the statement was offered.
"While the Court of Appeals opinion does not make mention of it, an examination of the transcript shows that the defendant did not take the witness stand and no evidence was offered to refute any of the above-quoted testimony.
The petitioner argues, “when Mr. Lyda made the assertion in question, the Defendant had no reason to believe that such was adverse to his interests. Under the circumstances, the Defendant had no reason to respond to this assertion * * This, alone, does not render the testimony hearsay. I do not believe the error, if any, had any bearing on the result reached by the trial court sitting without a jury. I concur in the result of the majority opinion.