Cooper v. State

Decision Date11 January 1956
Docket NumberNo. 27891,27891
Citation288 S.W.2d 762,162 Tex.Crim. 624
PartiesJohnny Pierce COOPER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Z. E. Coombes, Dallas, for appellant.

Henry Wade, Crim. Dist. Atty., Harold G. Clark, Jr., and Charles S. Potts, Asst. Crim. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is procuring; the punishment, 2 months in jail and a fine of $100.

Officers Woodall and Turrigiano of the vice squad of the Dallas city police testified that on the night in question, while dressed in civilian clothes, they went to the motel where appellant was employed as a porter and that Officer Turrigiano had a conversation with the appellant in the office. Turrigiano told the appellant that he was from San Antonio, and we quote from his testimony as follows:

'Well, to the best of my knowledge, I asked him if he had a girl available, one or two. He said he didn't know, then after some other conversation which I don't recall right now--he finally agreed to get us a girl.'

Following this, a woman presented herself at a cabin in which the officer was waiting and discussed the price she charged for various forms of sexual intercourse, whereupon she was arrested. The appellant was then found and arrested.

The appellant, testifying in his own behalf, stated that before going to work at the motel four days before the offense herein charged he had worked as a porter at Merchants Delicatessen and that during those four days of employment at the motel no one had approached him in an effort to get him to secure women for illicit purposes. He stated that when the officers arrived at the motel on the night in question he told Officer Turrigiano that he had no girls and didn't know any. He testified further that the officer gave him fifty cents and suggested that he call some porters at other hotels and find out from them where to get a girl; that he did so and, after calling several hotels, he finally reached his friend Washington, who worked at the St. George, and told him that he had two men in a certain numbered cabin at his motel who wanted a date. He stated that he did not know the girl or talk to her over the telephone and did not see her when she got to the motel until after she was arrested. He testified that he quit his job at the motel following his arrest and had not followed that line of employment since.

The sole question presented for review is the failure of the trial court to charge on the defense of entrapment.

Recently, in Brown v. State, Tex.Cr.App., 282 S.W.2d 224, 225, we held that the testimony of Brown did not raise the issue of entrapment. In that case, Brown testified that he 'called Joyce from a list of girls' phone numbers which he had.' His defense was that he was taking orders from an officer of the law when he called the prostitute.

But do we have such a case here? We think not.

In Peery v. State, 138 Tex.Cr.R. 155, 134 S.W.2d 283, 285, we said:

'The word 'entrapment' has been defined legally as 'the seduction or improper inducement to commit a crime, and not the testing by trap, trickiness, or deceit of one suspected.' U. S. v. Wray, D.C., 8 F.2d 429. Mr. Webster defines the word 'entrap' as 'to catch as in a trap by artifice.' The word 'entrapment' as used in a legal sense carries with it the presumption that the officer or agent manufactures the offense and then incites accused to commit the offense for the purpose of prosecution.'

Entrapment has also been defined as "the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal prosecution against him." State v. Marquardt, 139 Conn. 1, 89 A.2d 219, 221, 31 A.L.R.2d 1206; Sorrells v. U. S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 423, 86 A.L.R. 249; U. S. v. Wray, D.C., 8 F.2d 429, 430.

It is the general rule that where the criminal intent originates in the mind of the accused the fact that the officers furnish the opportunity for or to aid the accused in the commission of a crime constitutes no defense to such a prosecution. Stevens v. State, 133 Tex.Cr.R. 333, 113 S.W.2d 906; Sorrells v. U. S., supra; State v. Marquardt, supra; 22 C.J.S., Criminal Law, § 45, p. 99. However, if the criminal design originates in the mind of the officer and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, this is entrapment, and in law may constitute a defense to such crime. Sorrells v. U. S., supra; State v. Marquardt, supra; Butts v. U. S., 8 Cir., 273 F. 35, 18 A.L.R. 143; O'Brien v. U. S., 7 Cir., 51 F.2d 674; Morei v. U. S., 6 Cir., 127 F.2d 827; 9 Texas Law Review 276; 41 Yale Law Journal 1249; 15 Am.Juris. 25; 22 C.J.S., Criminal Law, § 45, p. 99.

Where the evidence raises an issue as to whether the intent to commit a particular crime originated in the accused's mind or in the mind of the officer and whether the accused was induced to act in a manner in which he would not otherwise have acted except for such inducement, then the question of entrapment is one of fact and should be submitted to the jury. Sorrells v. U. S., supra; State v. Marquardt, supra; Peolpe v. Kozakis, 102 Cal.App.2d 662, 228 P.2d 58; People v. Gallagher, 107 Cal.App. 425, 290 P. 504; United States v. Sawyer, 3 Cir., 210 F.2d 169. According to the appellant's testimony, he was not in the business of procuring, knew no prostitutes, and the arresting officers were the first persons to mention the subject to him. If this were true, then the officers were not by artifice catching the appellant in his established business but by their inducement caused him to commit a criminal act which he would not have committed except for such inducement.

We have concluded that the testimony of the appellant raised the issue of entrapment which should have been submitted to the jury under appropriate instructions.

Upon another trial, the State will no doubt file a new information so that it will follow the wording of the complaint.

The judgment is reversed and the cause remanded.

WOODLEY, Judge (concurring).

Whether entrapment is properly called a defense to crime in this State or not, if as he testified, appellant had not previously been engaged in similar activity and had no purpose or intent of doing so, and the State is seeking to prosecute, convict and punish him for an offense which was envisaged, planned and its commission by appellant activated by the officer for the sole purpose of obtaining his conviction for a crime which is the product of the creative activity of the officer, common justice required that the appellant be permitted to prove such facts.

If shown or found to exist, the consummation of so revolting a plan ought not to be permitted by any self-respecting tribunal. Sorrells v. U. S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413.

The officer in question admitted no such scheme to secure the conviction of innocent persons by inducing them to violate the law in order that he might prosecute them therefor. If he had, the writer entertains no doubt that appellant would have received prompt protection at the hands of the prosecuting attorney and from the trial court.

The issue, however, was raised by appellant's testimony and was an appropriate one for the jury, and the requested charge appears to be sufficient to call the matter to the attention of the court.

DAVIDSON, Judge (dissenting).

As I construe and understand this holding of my brethren, they have licensed the commission of violations of the law and opened the way for the commission of illegal acts without penalty. Here is what they hold:

If, for the mere purpose of instituting a criminal prosecution against a person, a peace officer induces such person to commit a crime which he had not contemplated committing and as a result of that inducement such person commits a crime, no prosecution will lie, because the person so induced has committed no crime because he was entrapped by the officers into committing the crime.

My brethren quote one of the definitions of the term, 'entrapment,' as follows:

"* * * the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal prosecution against him."

Further, and in connection with that definition, my brethren say:

'However, if the criminal design originates in the mind of the officer, and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, this is entrapment, and in law may constitute a defense to such crime.'

These two pronouncements of my brethren demonstrate, of and within themselves, the correctness of the proposition I first asserted. They magnify those pronouncements and make sure that no one will misunderstand their holding, for they reverse this case because the trial court failed to give the following charge to the jury:

"You are further charged that if you find and believe from the evidence or if you have a reasonable doubt thereof that the defendant, Johnny Pierce Cooper, was induced at the instigation of Officer Turrigiano to commit the offense charged, if same was committed, with a view of prosecuting him for the same, without prior knowledge or information that the defendant had committed similar offenses, you will find the defendant not guilty and say so by your verdict."

It is apparent that what my brethren hold is that if a peace officer, by entrapment, induces another person to commit a crime, that person may not be prosecuted or convicted of the crime because he was entrapped by the officer into committing it. So, neither the peace officer nor the person actually committing the crime may be punished therefor. Under the facts here presented, my brethren conclude that the officer was guilty of entrapping the appellant into committing the crime of procuring. Therefore,...

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33 cases
  • England v. State, 762-93
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 14 Septiembre 1994
    ...(1976). When this Court first judicially recognized the doctrine of entrapment per se, it adopted a subjective test. Cooper v. State, 162 Tex.Cr. 624, 288 S.W.2d 762 (1956). With the advent of the 1974 Penal Code, the doctrine was codified for the first time in Texas. The Legislature was ca......
  • Langford v. State, 56977
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 27 Septiembre 1978
    ...tendencies of the defendant. In this State, the defense of entrapment was first recognized in 1956 in the case of Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762. In Cooper, this Court adopted what is now known as the "subjective" test and stated the rule as "It is the general rule that ......
  • Carr v. State, 46132
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 13 Junio 1973
    ...testimony but held that the defense of entrapment as a defense to crime was not raised by the evidence. In Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762, 770, on motion for rehearing, the Court wrote: 'The invocation of the defense of entrapment necessarily assumes the act charged was ......
  • Guerrero v. State, 45314
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 13 Diciembre 1972
    ...And a question as to whether the accused was induced to act. Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452; Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762. Without evidence of inducement, entrapment is not raised. Thomas v. State, 163 Tex.Cr.R. 308, 290 S.W.2d 680; Brown v. State, ......
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