Sorrells v. United States

• Decision Date: 13 April 1932
• Docket Number: No. 3168.,3168.
• Citation: 57 F.2d 973
• Parties: SORRELLS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

57 F.2d 973 (1932)

SORRELLS v. UNITED STATES.

No. 3168.

Circuit Court of Appeals, Fourth Circuit.

April 13, 1932.

J. Y. Jordan, Jr., of Asheville, N. C., for appellant.

Thomas A. McCoy, Asst. U. S. Atty., of Asheville, N. C. (Chas. A. Jonas, U. S. Atty., of Lincolnton, N. C., and Frank C. Patton, Asst. U. S. Atty., of Morganton, N. C., on the brief), for the United States.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

The appellant, defendant in the court below and hereafter so designated in this opinion, was convicted of selling intoxicating liquor in violation of the National Prohibition Act (27 USCA), and was sentenced to a term of imprisonment. His assignments of error present two points for our consideration: (1) That the trial judge withdrew from the jury the defense of entrapment; and (2) that the judge admitted evidence of a sale of liquor at a date subsequent to that charged in the indictment and constituting a separate and distinct offense.

On the question of entrapment, the evidence was that one Martin, a federal prohibition agent, went to the home of the defendant in the country near Clyde, N. C., with three other young men, and was introduced by them to defendant as a furniture dealer of Charlotte. After some conversation, Martin asked the defendant to get him some liquor, stating that he wished to take it to his partner in Charlotte. Defendant at first denied that he had any liquor; but after further conversation, in the course of which Martin several times asked defendant to get liquor for him, and in which it developed that defendant and Martin had been soldiers in the same army division in the World War, defendant left and in a few minutes returned with a half gallon of liquor which he sold to Martin for $5. Defendant did not take the stand, but introduced a number of witnesses who testified that he was a man of good character and regularly employed by a wood fiber plant near his home. The government in rebuttal introduced testimony to the effect that defendant bore the reputation of being a rumrunner. The court admitted, over defendant's objection, testimony to the effect that about six weeks after the sale charged in the indictment, as to which the defense of entrapment was asserted, defendant at his home sold a half gallon of liquor to Martin and another prohibition agent.

We think that the judge properly instructed the jury that there was no evidence of entrapment. Taken in the light most favorable to the defendant, the record shows nothing more than that the prohibition agent misrepresented his employment, concealed his official position, and made a purchase of liquor from defendant with the intention of prosecuting him for the violation of law involved in the sale. The only inducements to the sale were the requests of the agent that defendant get liquor for him, and the price paid for the liquor. The defendant knew that he was violating the law and must be presumed to have intended to violate it, and there is nothing in the evidence excusing the violation. The fact that the officer requested defendant to make the sale to him did not justify the latter in doing that which the law forbade.

The defense of entrapment can be maintained only where, as a result of inducement, the accused is placed in the attitude of having committed a crime which he did not intend to commit, or where, by reason of the consent implied in the inducement, no crime has in fact been committed. Thus the defense has been sustained where an accused, not intending to sell liquor to an Indian in violation of law, made a sale to an Indian disguised so as to mislead the accused as to his identity. U. S. v. Healy (D. C.) 202 F. 349; Voves v. U. S. (C. C. A. 7th) 249 F. 191. In such case the accused lacked the intent to violate the law, and was placed in the position of violating it by the trick of officers of the law who deceived him as to the identity of the purchaser. He was thus beguiled, not into a known violation of the law, but into the belief that an unlawful act was in fact lawful. The defense was not sustained, however, in a case where Indians were sent by officers to purchase the liquor, but were not disguised. United States v. Amo (D. C.) 261 F. 106.

And the defense will be sustained in a prosecution for crimes such as larceny, where the want of consent of the person affected is an essential element of the crime, and where the inducement supplies the consent. State v. Adams, 115 N. C. 775, 20 S. E. 722; U. S. v. Whittier, 5 Dill. 35, Fed. Cas. No. 16,688; Rex v. McDaniel, Fost. Crown Law 121, 2 East P. C. 665. But as said by Judge Dillon in Whittier's case, supra, "this principle must be limited to the cases where the consent will, as a matter of law, neutralize the otherwise criminal quality of the act." In this class of cases, which is the class in which the defense originated, the distinction is made that where the criminal design originates with the accused, and the owner of the property does not suggest the design or actively urge the accused on to the commission of the crime, the defense may not be asserted, though the owner neglects to protect his property or furnishes facilities for the execution of the design; and this distinction with reference to the origin of the criminal design has been applied by some courts to cases as to which it properly has no application, as where the act committed is a crime irrespective of the consent of the party affected by it. See Butts v. U. S. (C. C. A. 8th) 273 F. 35, 18 A. L. R. 143 and note; O'Brien v. U. S. (C. C. A. 7th) 51 F.(2d) 674 and note.

But we think it clear that where the doing of a particular act is a crime, regardless of the consent of any one, and where the accused has intentionally committed such an act, he is guilty of a violation of law, irrespective of the temptation under which he acted or the motive or identity of the person who tempted him. See note of Mr. Francis Wharton to Bates v. U. S. (C. C.) 10 F. 92, 97 et seq., cited with approval by the Supreme Court in Grimm v. U. S., 156 U. S. 604, 610, 15 S. Ct. 470, 39 L. Ed. 550. If notwithstanding the consent implied in the solicitation, the gist of the offense remains, the accused is guilty. Hanish v. U. S. (C. C. A. 8th) 227 F. 584, 586. As said by the late Chief Justice Clark of North Carolina in State v. Smith, 152 N. C. 798, 67 S. E. 508, 509, 30 L. R. A. (N. S.) 946, a prosecution for the unlawful sale of intoxicating liquor, "it is not the motive of the buyer, but the conduct of the seller, which is to be considered."

In the note of Mr. Wharton above mentioned, it is said:

"The only exceptions known to the principle before us exist (1) in cases in which to the offense it is essential that it should be `against the will' of the party injured; and (2) in cases in which the offense consists in certain physical conditions which cannot exist if a trap be laid.

"(1) When it is a condition to an offense that it should be `against the will' of the party injured, then there must be an acquittal should it appear that such party invited the defendant to the commission of the offense. This is the case with regard to prosecutions for rape: Reg. v. Fletcher, Bell, 63; 8 Cox, C. C. 131; Com. v. McDonald, 110 Mass. 405; Brown v. People, 36 Mich. 203; State v. Burgdorf, 53 Mo. 65; Walter v. State, 40 Ala. 325; to prosecutions for highway robbery: Rex v. McDaniel, Fost. 121, 128; Long v. State, 12 Ga. 293; to prosecutions for assaults, which are not in themselves offenses against the public peace: Rex v. Wollaston, 12 Cox, C. C. 180.

"(2) When there are physical conditions of an offense inconsistent with a trap, so that these conditions cannot exist when there is a trap, then the defendant must be acquitted. The most striking illustration of this exception is to be found in the case of burglary already noticed. There can be no prosecution for burglary in cases where the door of the house was opened by its owner to give the burglar entrance.

"Whether, when the offense is the special product of the trap, the defendant can be convicted, depends upon the exclusiveness of the causal relationship between the offense and the trap. When the defendant was the passive tool of the entrapping party then there should be an acquittal. On the other hand, the defendant ought not to escape conviction in any case (with the exceptions above given) in which he knowingly committed the offense. The most frequent cases under this head are prosecutions for illicit sales of liquor. In an English trial in 1881 (Rex v. Titley, see London Law Times, July 30, 1881) a conviction of this class, when the sale was induced by the adroitness of a detective, was sustained, though it became subsequently the subject of much discussion in the house of commons. In Scotland (Blaikie v. Linton, 18 Scottish L. R. 583) a similar conviction in 1881 was set aside by the court of justiciary on the ground that the offense was the product of the solicitation. But this can only hold good in cases in which the offender's action is not imputable to his free agency."

It is to be noted that the Supreme Court has given no countenance to the doctrine of the cases which hold that a violator of the law is to be acquitted because the violation for which he is being prosecuted has been induced by the solicitation of officials of the government. On the contrary, that court has treated the acts of the officers, not as excusing the crime of the accused, but merely as furnishing an opportunity for its commission with a view of ascertaining whether the accused is engaged in an unlawful business. Grimm v. U. S., 156 U. S. 604, 15 S. Ct. 470, 39 L. Ed. 550; Goode v. U. S., 159 U. S. 663, 16 S. Ct. 136, 40 L. Ed. 297; Rosen v. U. S., 161 U. S. 29, 16 S. Ct. 434, 40 L. Ed. 606; Andrews v. U. S., 162 U. S. 420, 16 S. Ct. 798, 40 L. Ed. 1023; Price v. U. S., 165 U. S. 311, 17 S. Ct. 366, 41 L. Ed. 727. Most of these are "decoy"...