Gray v. State

Citation231 N.E.2d 793,249 Ind. 629
Decision Date18 December 1967
Docket NumberNo. 30948,30948
PartiesSamuel Morton GRAY, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Robert G. Mann, Bolden & Mann, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Michael V. Gooch, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is a criminal prosecution charging the appellant in two counts with the offense of violating the 1935 Narcotic Act, as amended. Count One was a charge of possession of heroin. Count Two was a charge of sale of heroin.

The appellant contends in this appeal that he was a victim of entrapment. The evidence is very meager and shows by the testimony of the police officers that they gave an informant, Emmett Gray, $10.00 to make the purchase at the appellant's apartment; that before the purchase, Emmett Gray, the informant, was searched by the police officers, who waited outside appellant's home in a car. The officers testified that when the informant went into the apartment, he had no heroin on his person and no other money than the $10.00. Shortly thereafter the informant returned and they testified that he did not have the $10.00 and had two capsules of heroin. Emmett Gray, the informant, simply testified he went to the apartment of the appellant and asked him to make a sale of heroin to him, and this occurred.

There is no evidence in this case of any prior traffic in drugs by the appellant or that the officers had any information that he had possession of heroin or had been selling heroin, nor is there any evidence of any previous conviction of the appellant. He tok the stand and on cross-examination, the prosecution elicited no evidence indicating that he was engaged in narcotics traffic.

The trial was before the court, without a jury. Appellant was found guilty of the sale on Count Two and no finding was made on Count One--possession. He was sentenced to prison for a term of not less than five (5) years nor more than twenty (20) years and fined One ($1.00) Dollar and costs.

It is argued in this case that the criminal design originated in the minds of the police, not with the accused; that the idea of the sale was conceived in the minds of the law enforcement officers and the accused was induced or lured into the commission of the illegal sale. It has been said that law enforcement officers should not incite or create crime for the sole purpose of punishing individuals. It takes two to make a sale and in this case the purchaser, so far as the evidence shows, was as responsible for the illegal transaction as the seller. The case is entirely devoid of evidence showing that this idea of a sale originated in the mind of the appellant, and the informant was merely an instrument through which the illegal transaction took place.

In Smith v. State (1938), 214 Ind. 169, 13 N.E.2d 562, 14 N.E.2d 1017, the evidence showed that the appellant had sold narcotics or furnished them on previous occasions and had been warned against the sale. The court held in such instance there was no entrapment where a sale was made to a police officer.

In Shacklett v. State (1926), 197 Ind. 323, 150 N.E. 758, the evidence showed that the appellant had previously been engaged in the sale of intoxicating liquor and a sale to a police officer was not a situation which lured or persuaded the appellant into the illegal sale.

In Minton v. State (1966), Ind., 214 N.E.2d 380 the appellant approached the informant and offered to sell him codeine tablets.

In the recent case of Neusbaum v. State, Ind., 230 N.E.2d 772, decided November 14, 1967, the evidence there showed that the sale was first generated in the mind of the defendant-appellant with a witness-Ray, who reported it to the police and became an informer.

It is true that there is no prohibition against police or private citizens arranging to catch persons engaged in illegal activity. In fact, it is the duty of conscientious and efficient law enforcement officers to make such efforts. However, at the same time, a line must be drawn someplace between a trap for the unwary innocent and a trap for the unwary criminal. The idea must not be planted in the mind of the defendant by a law enforcement officer to violate the law. The idea must already be there and the law enforcement officer merely reveal it by his strategy. Sherman v. United States (1958), 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848.

The defense of entrapment need not be specially pleaded. Sorrells v. United States (1932), 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 418.

In the above case, 287 U.S. 445, 53 S.Ct. 214, at 77 L.Ed. 418 it was said:

"* * * When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution theref...

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  • Patty v. Board of Medical Examiners
    • United States
    • United States State Supreme Court (California)
    • April 19, 1973
    ...of illegal liquor. (See also Peters v. State (1970) 248 Ark. 134, 450 S.W.2d 276, 278 (no evidence of prior dealing); Gray v. State (1967) 249 Ind. 629, 231 N.E.2d 793, 796 (same); Morei v. United States (6th Cir. 1942) 127 F.2d 827 (no prior connection of physician-defendant with drug traf......
  • People v. Tipton, 76-279
    • United States
    • United States Appellate Court of Illinois
    • January 30, 1979
    ...their informer * * * when the defense of entrapment is raised." ' " 33 Ill.App.3d 762, 764, 338 N.E.2d 461, 462. In Gray v. State of Indiana, 249 Ind. 629, 231 N.E.2d 793, the Supreme Court of Indiana stated that there was no evidence that the defendant before he was approached by the infor......
  • Dockery v. State, 18S02-9412-CR-1229
    • United States
    • Supreme Court of Indiana
    • December 19, 1994
    ...entrapment is established as a matter of law. Hardin v. State (1976), 265 Ind. 635, 639, 358 N.E.2d 134, 136; Gray v. State (1967), 249 Ind. 629, 633-34, 231 N.E.2d 793, 796; Fearrin v. State (1990), Ind.App., 551 N.E.2d 472, 474, trans. denied. In Gray we also said that when the evidence e......
  • Romack v. State, 4-482A89
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    • Court of Appeals of Indiana
    • March 31, 1983
    ...of intent. See Thompson v. State, (1980) Ind.App., 400 N.E.2d 1151; Stayton v. State, (1980) Ind.App., 400 N.E.2d 784; Gray v. State, (1967) 249 Ind. 629, 231 N.E.2d 793. The probative value of quantity in proving intent obviously increases as the quantity itself becomes greater, but there ......
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