The opinion
ON appellant’s motion for rehearing
WOODLEY, Judge.
The motion for rehearing is predicated upon the contention that marihuana seed is not commonly used for smoking, and is to be excluded in determining whether the amount of marihuana found was sufficient under Pelham v. State, 164 Tex. Cr. R. 226 , 298 S.W. 2d 171 .
If we agreed with this, then to sustain appellant’s position we would be required to further hold that the state was under the burden of proving that the marihuana seed was not sterilized but was viable and would germinate, if planted.
The writer dissented in Pelham v. State and the later case of Johnson v. State, 165 Tex. Cr. Rep. 158, 305 S.W. 2d 361 . However, the majority holding was upon the assumption that the only use commonly made of marihuana is to smoke it in cigarettes. The seed which are specifically included in the definition of marihuana and the plant Cannabis Sativa L. are not restricted to that use, though the officers testified they were so commonly used.
The Uniform Narcotic Drug Act, Art. 725b V.A.P.C., contains no reference to marihuana seed being viable or sterilized. If this characteristic was controlling, it was a defense in the nature of an excuse, and the burden of proof was on the appellant under Section 21 of said Art. 725b V.A.P.C.
Appellant’s motion for rehearing is overruled.