BEFORE HAWKINS, P.J., PRATHER AND ROBERTSON, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Furman Hampton appeals from his conviction in the circuit court of the Second Judicial District of Jones County of possession of pentazocine, in violation the Uniform Controlled Substances Law of 1971, a sentence of three years,
and a $3,000 fine. Finding no error, we affirm.
On February 12, 1983, shortly before midnight, Hampton was driving a Toyota automobile that had only one headlight burning. When Laurel Police Officer Jimmy Gardner signaled the car to pull over, Hampton stopped the car and got out. As he did so, Gardner noticed him staggering and acting disoriented as though he was intoxicated. Gardner asked Hampton if he would agree to a portable breath test, which Hampton agreed to and also told the officer he had been drinking, a fact apparent to the officer from Hampton's breath.
Gardner patted Hampton down, as he testified at trial, "for his protection," and in doing so felt a syringe in Hampton's coat. He noticed some clear liquid in the syringe. He handcuffed Hampton and took him to the sheriff's office.
Gardner testified that during this episode, without his having asked Hampton any questions (other than would he take the breath test):
He smiled and made a statement that there was nothing in the syringe that we could use against him because he had already used it all.
Hampton was indicted by the grand jury on September 20, 1983.
Forensic analysis of the contents of the syringe revealed it contained pentazocine, commonly known as Talwin, a Schedule II controlled substance. See Miss. Code Ann. 41-29-115 (d)(6) and 41-29-139 (c)(1) (Supp. 1985). In order to test the contents, the liquid had to be diluted by methanol and the entire substance was consumed in making the laboratory analysis.
Prior to trial Hampton filed a motion to quash and dismiss his indictment on the grounds that (1) there was an insufficient quantity of the substance to constitute an offense and (2) double jeopardy since he had been convicted of possession of drug paraphernalia in justice court in that county. The only evidence offered of Hampton's having been convicted of possession of drug paraphernalia was Attorney Carl Forward, who had represented him for speeding, running stop signs, red lights and failing to yield to a blue light, in addition to the possession of paraphernalia. There is nothing in this record to show that the charge of possession
paraphernalia was identical with the possession of the syringe at the time Hampton was stopped by Officer Gardner. The circuit judge overruled the motion to quash and dismiss the indictment.
Following presentation of the evidence during closing argument, the district attorney made the following statement to the jury: "Furman Hampton told you he used it all," at which the defense counsel objected and requested the court to instruct the jury to disregard the remark of the ...