December 21, 1925
APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.
Walter Q. Phelan for appellant.
The court erred in refusing instructions on an enticement or entrapment; Duff vs. State (Ariz.) 171 P. 133; Peterson vs. U.S. 255 Fed. 433; 8 R.C.L. 127-129; 1. Zoline's Fed. C.L. P. 290; U.S. vs. Jones, 80 Fed. 513; Yick vs. U.S. 240 Fed. 60; U.S. vs. Echols, 253 Fed. 862; U.S. vs. Healy, 202 Fed. 349; Smith vs. State (Tex.) 135 S.W. 154; State vs. McCornish, (Utah) 201 P. 637; State vs. Mantis, (Idaho) 187 P. 268; People vs. Barkdoll (Calif.) 171 P. 440; State vs. Feldman, 129 S.W. 998.
David J. Howell, Attorney General and John C. Pickett Asst. Attorney General for respondent.
Where sales are made voluntarily, the rule against enticement does not apply. The sales charged here were involuntary sales, hence the authorities cited by appellant are not in point; Rothman vs. U.S. 270 Fed. 31; Rawsey vs. U.S. 268 Fed. 825; Goldstein vs. U.S. 256 Fed. 813; Strother vs. State, (Ala.) 72 So. 566; People vs. Amort, (Calif.) 212 P. 50; Moss vs. State, (Okla.) 111 P. 950; and cases cited; there was no question of entrapment raised at the trial; defense was a denial of sales; an instruction on the subject of entrapment would have been improper; Apeers vs. State (Tex.) 190 S.W. 164; People vs. Wright, (Calif.) 138 P. 349; People vs. Myrn (Mich.) 190 N.W. 666.
Mrs. James Kirkbride appeals from a judgment on a verdict finding her guilty of making an unlawful sale of one pint of whiskey.
The specified errors all relate to rulings against defendant on questions relating to an alleged issue of entrapment.
The state's evidence showed that the sale was made by defendant to one of two detectives who were employed by the sheriff of Laramie county to investigate several suspected hotels or rooming houses among which was a hotel conducted by defendant. Both detectives testified that they bought "drinks" of whiskey from the defendant at her hotel before they bought the pint in question. The one who bought the pint testified that he asked defendant for it, paid for it, and she delivered it in his room a few minutes later. There was no evidence of any solicitation or inducement except the ordinary request to buy which apparently was assented to without hesitation or question. On cross-examination the detective testified thus:
"Q. What was your purpose in buying this? A. For evidence.
Q. And you bought it for the sole purpose of bringing a prosecution against this woman? A. Absolutely.
Q. You told her you wanted a bottle? A. Told her I wanted a bottle, sure.
Q. You were the one that suggested to her that she sell you a bottle of whiskey, were you? A. Yes, sir.
Q. And you were the one that suggested to her that she sell you a drink of whiskey? A. Yes, sir.
Q. And you had no other purpose for buying that, except that of bringing a prosecution against her? A. None whatever."
The evidence further showed that the sheriff paid the witness the money given Mrs. Kirkbride for the whiskey.
This is all the evidence on the question of entrapment. The evidence introduced by the defendant shed no additional light on that question. She, testifying as a witness, denied that she made any sale, but, of course, the fact that she did is settled by the verdict.
Because the evidence showed that the sale was made on the solicitation of agents of the state for the sole purpose of obtaining evidence to support a prosecution, it is contended that the trial court should have directed a verdict of not guilty, or, at least, should have given some one of several offered instructions that would have authorized an acquittal if the jury found that defendant had been entrapped. Adverse rulings on these contentions in the trial court are the assigned errors.
We believe there was no issue of entrapment, and the rulings of the trial judge were right. There was no evidence of anything said or done by the officers to solicit or induce the sale except to make an offer such as would be expected from anyone proposing to buy. The only deception was in concealing their purpose. The decisions in cases involving illegal sales of drugs and liquors are practically unanimous in holding that the defense of entrapment is not available where the only solicitation is an offer to buy. Tripp v. Flannigan, 10 R.I. 128; People v. Murphy, 93 Mich. 41; 52 N.W. 1042; State v. Gibbs, 109 Minn. 247; 123 N.W. 810, 25 L.R.A. (N.S.) 449; Moss v. State, 4 Okla. Sr. 247; 111 P. 950; Salt Lake City v. Robinson, 40 Utah 448; 125 P. 657; State v. Lee, 177 Ia. 316; 158 N.W. 667; Evanston v. Myers, 172 Ill. 266; 52 N.E. 204; State v. O'Brien, 35 Mont. 482; 90 P. 514, 10 Am. Cas. 1006; State v. Seidler, (Mo.App.) 267 S.W. 424; Clark v. State (Ind.) 145 N.E. 566; State v. Abraham, 158 La. 1021, 105 So. 50; State v. Smith, 152 N.C. 798; 67 S.E. 508; 30 L.R.A. (N.S.) 946; Hyde v. State, 131 Tenn. 208; 174 S.W. 1127; Whittington v. State, 160 Ark. 257; 254 S.W. 542; State v. Barkdoll, 36 Calif. App. 25; 171 P. 440; Simmons v. People, 70 Colo. 262, 199 P. 416.
Federal courts have frequently refused to sustain convictions where the defendant has been the victim of entrapment. Defendant relies on several of these cases, including Peterson v. U.S., 255 Fed. 433; 166 C.C.A. 509; Yick v. U.S., 240 Fed. 60; 153 C.C.A. 96; U.S. v. Healy, 202 Fed. 349; Butts v. U.S., 273 Fed. 35, 18 A.L.R. 143. These and other cases cited in the brief are easily distinguishable from the case at bar, though language can be found in them that would seem to support the defendant's contentions. General language used in describing an entrapment must be construed in the light of the facts to which it is applied. Zucker v. U.S., 288 Fed. 12, 16. Other federal cases show that the defense of entrapment is not available in a prosecution for making an illegal sale where there has been nothing more of solicitation than an offer to buy from a person suspected of violations of the law. Lucadamo v. U.S., 280 Fed. 653; Zucker v. U.S., 288 Fed. 12; Jordan v. U.S., 2 F.2d 598; Smith v. U.S., 284 Fed. 673; Rossi v. U.S., 293 Fed. 896; De Long v. U.S., 4 F.2d 244.
The defendant quotes at length from State v. Cornish, 59 Utah 58, 201 P. 637, a pandering case. The opinion in that case does not purport to set out the facts which led the court to believe that the defendant was induced to commit the crime by the importunities and encouragement of the officer. It is clear, however, that there must have been much more than a mere offer to patronize the defendant in an unlawful business. The case of Salt Lake City, v. Robinson, 40 Utah 448, 125 P. 657, cited above, was not overruled, but followed. The Robinson case is better authority in the case at bar.
The judgment of the district court will be affirmed.
POTTER, Ch. J., and BLUME, J., concur.