(dissenting).
The officers found two “cartuchos”, substantially a pound, of marihuana in a wall in a utility room which was some three feet from appellant’s home in a brown paper sack between “two by fours” or studs that held the sheetrock in place. A handsaw was hanging over and completely covering the hole where the marihuana was found. The appellant told the officers that he had been making some repairs to the building by himself.
When the marihuana was found, the appellant’s wife was allowed at look at it. She then stated to the appellant, “Now, let’s see your friends get you out of this.”
On original submission this Court reversed because the court refused the following requested charge:
“Testimony has been entered here that someone other than the defendant without defendant’s consent or knowledge committed the offense in question and that the defendant was not and could not have been the person who committed the same. Now if you find that the marihuana was found in the premises which were under the care, custody or control or management of said house but you further find that the defendant was not *106the person who placed the marihuana in defendant’s house and further find that if it was found in defendant’s house that he did not have knowledge thereof, and did not consent the marihuana to be placed in his house, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”
The testimony shows that the officers explained to the appellant that they were there to search for marihuana and that the appellant appeared to be nervous and the following transpired:
“Q. What, if anything, did Defendant say at that time ?
“A. Well, when Detective Trevino explained to him the purpose of the Search Warrant, Defendant stated that if we did find anything there, somebody else had put it in there.”
On cross-examination appellant’s counsel asked an officer, “[d]id I understand you to say that one of the first utterances made by the defendant, he was claiming that someone had planted it or placed it there?” He answered “Yes.”
It was also shown that the appellant’s four-month-old dog barked while the family was at the movies some time before the search and that the dog barked at strangers which appears to be a matter of little or no consequence.
The testimony relied upon for the requested instruction nowhere sets out that the appellant stated or claimed that he did not know the marihuana was on the premises or that he did not possess it. The appellant did not testify.
The issue was not who put the marihuana in the building, but who had possession. Someone else could have put it there for the appellant with his knowledge and consent.
The court charged the jury on possession as follows:
“By the term ‘possession,’ as used herein, is meant the care, custody, or control or management of the item in question.
“Now, if you find from the evidence beyond a reasonable doubt that the defendant, Domingo Ramos, did in Cameron County, Texas, on or about the 23rd day of March, 1970, unlawfully possess or have under his control a narcotic drug, to-wit, marihuana, as alleged in the indictment, then you will find the defendant guilty as charged.
“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.”
The statement of the appellant at the time of the arrest does not raise an affirmative defense, nor even assert a defense. It does not support the requested charge because the statement cannot be read to show that appellant did not possess or know the marihuana was behind the saw where he had been working.
In 31 Tex.Jur.2d, Section 109, page 658, Applicability of charge to pleadings and evidence, it is written:
“Any charge on a defensive issue should be applicable to the pleadings and the evidence. The trial court is not required to charge on every possible defense that may be conceived in regard to a criminal offense, unless it is supported by the evidence. Consequently it is not error to fail to charge as to a defense that has not been interposed, or as to one that is inconsistent with evidence in the case.
“Where testimony does no more than detail a suspicion that a party other than the appellant was guilty, it does not rise to the dignity of an affirmative defense.”
The maioritv now also state that error was committed because the court did not charge on circumstantial evidence. Again, the court defined possession as one having *107care, custody and control of the item and required the jury to find appellant possessed the marihuana before they could find him guilty.
No one can have care, custody and control of property without knowing he has it. The charge as given adequately protected the appellant’s rights. How can it be said a jury could convict under the charge given unless they believed appellant possessed and knew the marihuana was where the officers found it? Ordinarily, in my opinion, a charge on circumstantial evidence should not be required in a case such as this where a charge on possession is given as was done here.
Assuming arguendo that one or both of such charges should have been given, the Legislature must have had such a situation as this in mind when Article 36.19, V.A. C.C.P., was passed. It provides, in part, that where the requirements of Articles 36.14, 36.15 and 36.16, V.A.C.C.P., relating to court’s charge have been disregarded “ . . . [t]he judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . . . ”
Under this statute, the error, if any, would be harmless.
Most scholars studying judicial reform conclude that we should have fewer deci-sional points. The majority, in my opinion, are creating not fewer but more decisional points which are not only unnecessary but are cumbersome and confusing. In the future where hints of defenses are raised, such a decision if followed to its logical conclusion would require many issues. The submission of many unnecessary issues has in the past plagued the trials of civil cases. We should not encourage or require such a practice.
For the above reasons, the State’s motion for rehearing should be granted and the judgment affirmed.