by testifying he had never had marijuana on his person, appellant opened door to impeachment by testimony of witness that he had smoked marijuana with appellant on night in question and had seen appellant in possession of marijuana on previous occasions
How later courts described this case
- by testifying he had never had marijuana on his person, appellant opened door to impeachment by testimony of witness that he had smoked marijuana with appellant on night in question and had seen appellant in possession of marijuana on previous occasions
- Guns taken from defendants challenged as fruits of an illegal search and seizure waived when the defendants testified on direct examination that they had the guns in their possession and admitted having an exchange of gunfire with the officers.
Written by the judges who cited it.
The opinion
MORRISON, Judge
(concurring).
I concur in the affirmance of this conviction, but because of the peculiar facts involved feel impelled to state my reasons.
The question of unlawful arrest is not in this case. Appellants did not testify that they thought they were being arrested and did not assert that they thought the persons pursuing and shooting them were officers.
This is not a narcotics case where contraband is found either on the person or in the accused’s automobile. The officers did not need to search for the shotguns and the pistol because the evidence conclusively established the presence of such weapons in appellants’ automobile.
Appellants readily admitted the possession and the firing of the guns. Such testimony was part of their defensive theory in this assault with intent to murder case.
The question in this case is not whether the officers were acting within the scope of their authority in making the arrest. The sole question presented by this record is whether or not appellants were acting within their right of self-defense against the *931 strangers who they thought were attacking them.
This issue was properly submitted and answered adversely to them by the jury.
I concur.