Dissenting Opinion
DeBruler, J.Under this affidavit appellee was required to introduce evidence on each of the following elements: (1) appellant had possession of certain instruments, namely, an eye-dropper, needle, and cooker; (2) these instruments were adapted for the use of narcotic drugs by injection in a human being; and (3) appellant possessed those instruments- with the intent to unlawfully administer and use narcotic drugs.
The evidence which tends to support the trial court finding comes from two witnesses and is as follows: Officer Weis, *183Indianapolis Police Department, testified that on October 1, 1968, he observed appellant shoplift a bottle of after-shave lotion in a drugstore in Indianapolis. Weis arrested appellant for shoplifting and in searching appellant’s pockets Weis found a hypodermic needle, a singed bottle cap, an eye-dropper, part of a dollar bill, all wrapped in a yellow kleenex. Weis said the kleenex had a brown stain on it that he thought was blood but on cross examination he said he did not know that it was blood since no tests were run on it. Weis also testified on direct examination concerning certain marks on appellant’s arms:
“Q. All right, what did you do then? You looked at his arm.
A. Yes. And I observed on his arm puncture marks where his veins were raised in his arm.
Q. On what part of the arm, forearm?
A. In the area here in the forearm.
Q. You are referring to what part of the arm for the record, please?
A. That was the inside of the forearm.
Q. And then what did you do?”
On cross examination Weis testified concerning the marks as follows:
“Q. You stated that you saw a puncture mark on the defendant’s arm?
A. Yes, sir. It appeared to be slightly swollen, it was enlarged part.
Q. It could have been a bee sting or anything, or it was just a mark?
A. Yes, it was, it was a mark.
This is all of Weis’ testimony concerning the appearance of appellant’s arm.
Officer Crawley, Indianapolis Police Department, testified that he had been in the Narcotics Section of the department for eight years, had attended various training schools in narcotics enforcement around the country and had participated *184in numerous arrests for narcotic paraphernalia violations. Crawley described in general terms how the items found on appellant were commonly used by addicts and he stated his opinion that these items were instruments used to inject heroin into the human body.
The sole issue in this case is whether there was sufficient evidence of appellant’s intent to unlawfully administer and use narcotic drugs. I believe this case is analogous to Taylor v. State (1971), 256 Ind. 170, 267 N. E. 2d 383, where the defendant was arrested for shoplifting and found to be in possession of the same type of narcotics paraphernalia as is in this case. In finding the evidence insufficient to sustain a finding of the requisite intent a unanimous Court said:
“Therefore, all the evidence showed was that appellant was in possession of adapted instruments. This is not sufficient to satisfy the statutory requirement. The statute reads:
“ ‘(c) It shall be unlawful for any person to possess or have under his control, with intent to violate any provision of this act, any hypodermic syringe or needle or any instrument adapted for the use of narcotic drugs by injection in a human being.’
“The statute sets out three elements to be proved and it does not permit conviction merely upon a showing of the possession of adapted instruments. To permit such a conviction would be in effect to amend the statute. We assume the Legislature did not do a useless act in including the element of intent; if they had intended to punish the mere possession of adapted instruments they would not have included that element. The fact that the Legislature included the requirement that intent be proved necessarily implies that they recognized that there could be cases of possession of adapted instruments which would not be punishable under the statute.” (Original emphasis.) 267 N. E. 2d at 385.
We think there is no more evidence of intent in this case than there was in Taylor. Appellee argues that the evidence that appellant had “puncture marks” on his forearm was sufficient to show that appellant was a user of narcotics and the latter fact would support a finding by the trial court *185that appellant intended to use the paraphernalia to unlawfully administer narcotic drugs.
I do not agree. Before the existence of certain “marks” on appellant’s arm could be taken as proof that appellant was a narcotics user there would have to be some evidence that the marks were of the same type, number, location, visual appearance, etc. as those commonly found on narcotics users. There is no such evidence in this case. Officer Crawley testified as an expert witness on narcotics violations but he was never asked a question concerning the type, number, location, visual appearances of puncture marks commonly found on narcotics users and Crawley did not even see appellant’s arm. Officer Weis did see the appellant’s arm but from his testimony it is not clear whether there was more than one mark, and Weis was never asked whether the marks, considering the size, type, location, visual appearance, etc. were the type commonly found on narcotics users. Since this was Weis’ first narcotics investigation and arrest there might have been some question as to his qualifications to so testify, but in any case he was not asked to. Therefore there was no evidence to show that from the appearance of the actual marks on appellant’s arm it could be inferred appellant was a narcotics user. This case is then controlled by Taylor v. State, supra and I would hold the evidence was insufficient to support the trial court finding.
Note. — Reported in 279 N. E. 2d 797.