Opinion
Argued December 9, 1966
Affirmed December 21, 1966
Appeal from Circuit Court, Multnomah County.
ALAN F. DAVIS, Judge.
Affirmed.
George A. Haslett, Jr., Portland, argued the cause and filed a brief for appellant. Jacob B. Tanzer, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.
Before McALLISTER, Chief Justice, and SLOAN, GOODWIN, HOLMAN and LUSK, Justices.
Defendant was convicted of violating ORS 167.130 (knowingly transporting a female person for purposes of prostitution). He appeals.
The first question is whether the failure of the transported female to consummate an act of sexual intercourse with a state's witness (a police officer) is a defense to the crime charged. We hold that the defendant's conduct was an unlawful act in itself. The performance or nonperformance of a separate offense by the female, while it may have been relevant in the jury's consideration of the entire transaction, would not be a necessary element of the crime charged. There was abundant evidence that the defendant performed every part of the statutory offense that was within his capacity to perform.
The second question is whether the defendant was entitled to a directed verdict of acquittal because of entrapment. The evidence most favorable to the defendant reveals at best a jury question upon this issue, but no basis for a directed verdict. As no error is assigned to the giving or refusing of an instruction upon entrapment, no question is presented upon that score. See State v. LeBrun, 245 Or. 265, 419 P.2d 948 (1966).
Affirmed.