Brown v. State
| Decision Date | 12 July 1974 |
| Docket Number | No. 3,No. 49372,49372,3 |
| Citation | 132 Ga.App. 399,208 S.E.2d 183 |
| Parties | Elijah R. BROWN et al. v. The STATE |
| Court | Georgia Court of Appeals |
Grace W. Thomas, Atlanta, for appellants.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Robert A. Weathers, Morris H. Rosenberg, Atlanta, for appellee.
Syllabus Opinion by the Court
Elijah Robert Brown and Adell Walker, the defendants were indicted, tried and convicted of the offense of kidnapping and were sentenced to serve 10 years in the penitentiary. Their motion for new trial was overruled and they appealed to this court.
A female police officer testified that she was acting as a decoy with the stakeout squad on Juniper Street, N.E. between 6th and 7th in Atlanta at about 10 p.m. Her testimony disclosed the following: The area in which she was located was a high crime area where a number of robberies, muggings, etc., had taken place and that the purpose of the stakeout squad was to be in such areas so as to discover crimes in the process of being committed. Another police officer was hidden directly across the street from where she was located and two officers were in the vacant lot behind her. The lot was vacant because the house thereon had been torn down and removed, and the premises had grown up in weeds and bushes. A parking lot was located across the street. She saw two men, later identified as the two defendants, come from the parking lot and then cross the street to her side a short distance down the street and where they waited until there was no traffic; they then approached her and Brown asked her if she wanted to go for a ride in a Corvette. She said 'no' and then they asked her if she didn't want a date. She again said 'no' and told them to move on, at which time both of them grabbed her, one by each arm, and began dragging her off the street into the vacant lot behind where she had been standing. Brown pulled something from his pocket and placed a sharp object in her side and said 'If you scream we will kill you, come on.' At this time the officer across the street came out from hiding and announced that he was a police officer and the two defendants ran up the steps of the vacant lot toward the two hidden police officers. One of them was arrested at that spot and the other was caught a short time thereafter a few blocks away. The police woman estimated she was dragged from 3 to 5 feet, but on going out and examining the location later, measured it as 15 feet. Her story of the occurrence was substantiated by the other police officers, as well as the distance which she was dragged.
Both defendants testified and denied that they ever touched the police woman and both of them indicated that she smiled at them (which she denied) and that the reason they ran was because they thought they were going to be robbed, not knowing that these were police officers, when the police officer from across the street ran across with a gun in his hand. Held:
1. "Entrapment' exists where the idea and intention of the commission of a crime originates with an officer of the State, and he, by undue persuasion, incitement and deceitful means, induces the defendant to commit an act . . . which the defendant would not have committed except for the conduct of such officer.' Sutton v. State, 59 Ga.App. 198(3), 200 S.E. 225. It occurs when the criminal conduct is 'the product of the creative activity' of law enforcement officials. Sherman v. U.S., 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. Where officers suspect a person of being systematically guilty of a certain type of offense, such as selling illegal liquor, the setting of a trap by proposing to such person that he sell to the decoy is not generally considered entrapment in the sense that it may be used as a legal defense for the reason that a part of the law enforcement process involves that apprehension and removal of known criminals. A different situation is presented where a man is persuaded into committing a crime in the first instance. As was stated in Butts v. U.S., 273 F. 35, 38:
Assuming, without deciding, that the defendants fell within this last classification, we find nothing in the present record disclosing that the officers of the law inspired, incited, persuaded or lured them to commit the crime for which they are charged. Even under their own testimony the only act of the police was a smile of the police woman which is not sufficient to constitute a lure, incitement or persuasion to commit the crime of kidnapping.
2. Appellant contends that since the statute defines kidnapping as the abduction and stealing away of any person without lawful authority, the abduction and stealing away in the present case was insufficient to comply with the statute; that is, that the movement of the police woman of a distance of 15 feet against her will does not constitute the crime of kidnapping. With this we do not agree. In Craighead v. State, 126 Ga.App. 300, 190 S.E.2d 606 an automobile theft case, a similar argument was used by saying that the movement of an automobile was not sufficient asportation to constitute the larceny. The court said 'Any unlawful asportation, however slight (15 feet in this case), is sufficient to show the 'taking' element.' And in a kidnapping case it was said by the North Carolina...
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