“The question as to whether marihuana is a narcotic drug is one of law and not of fact.”
How later courts described this case
- “The question as to whether marihuana is a narcotic drug is one of law and not of fact.”
Written by the judges who cited it.
The opinion
*5 DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
DOUGLAS, Judge.
The majority denies the State’s motion for leave to file a motion for rehearing. The opinion reversing the conviction relies in a large part on Pruitt v. State, 389 S.W.2d 475 (Tex.Cr.App.1965), which has been overruled in Onofre v. State, 474 S.W.2d 699 (1972). The majority stresses that there was no probable cause for an arrest. No probable cause is required before an officer can stop a motorist even if the detention is for a license check. There is a distinction between detention and an arrest.
The worst part of the majority opinion is the dictum that an officer stopping someone legally cannot look inside an automobile. The majority writes: “The scope of an investigation cannot exceed the purposes which justified its initiation.” The majority also overrules Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973), which held that where an officer legally stopped a motorist to determine if he had an operator’s license a pistol which was in plain view in the car was admissible in evidence. After the majority opinion, officers cannot for their own protection take a pistol which is in plain view after a car has been legally stopped because the sight of the pistol is illegal, under the rule that “[t]he scope of an investigation cannot exceed the purpose which justified its initiation.” Now an officer cannot shine a flashlight into a car that has been legally stopped. If he does so he cannot testify about what he sees. If an officer sees a murder victim between the seats of a car, the apparent reasoning of the majority would be that the officer could not testify about finding the body because the detention was for a license check. Would the same rule apply if an officer sees a murder being committed in a car?
A good rule heretofore followed by this Court is that an officer may take contraband which is in plain view if he has a right to be where he is. See Valdez v. State, 472 S.W.2d 754 (Tex.Cr.App.1971). That rule, based on reason and common sense, should not be set aside.
The motion for rehearing — should_be granted and the judgment should be af-' firmed.