Jones v. State

• Decision Date: 12 November 1973
• Docket Number: No. 47454,47454
• Parties: David JONES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 152

285 So.2d 152

David JONES v. STATE of Mississippi.

No. 47454.

Supreme Court of Mississippi.

Nov. 12, 1973.

Milton R. Fairchild, Gulfport, for appellant.

A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.

SUGG, Justice:

This is an appeal from the Circuit Court of the First Judicial District of Harrison County, Mississippi wherein the defendant was convicted of the unlawful sale and delivery of marijuana. Defendant was sentenced to pay a fine of $2,000 and serve four years in the state penitentiary with the penitentiary sentence being suspended. The principal issue presented by this appeal is whether defendant's conviction should be set aside on the ground that the defense of entrapment was established.

Defendant was arrested in April, 1972 and made several attempts to obtain a preliminary hearing. Pursuant to these attempts, hearings were set for May 5, May 12 and September 5, 1972, but on each occasion, a preliminary hearing was not held, either because the witnesses for the state were not available, or because the court was too busy.

After indictment defendant filed a pretrial motion requesting the state to inform him of the present whereabouts of Paul Agregaard, whether or not Paul Agregaard was a paid confidential informant and for a copy of the criminal record of Paul Agregaard. The court denied these requests made by the defendant.

In December, 1971 two agents employed by the Mississippi Narcotics Bureau, together with Paul Agregaard, a paid confidential informer, met defendant at the Club 300 and proceeded in Agregaard's automobile to a point where the defendant got out of the automobile, retrieved marijuana hidden by a telephone pole and sold it to one of the undercover agents for $15. The undercover agent gave defendant a $20 bill and they returned to the club. The agents remained in the automobile while defendant and Agregaard went into the club. Agregaard returned to the automobile, gave one of the agents $5 in change and the three then departed in the automobile. One of the agents testified that he paid Agregaard as a confidential informer $20 on one occasion for information.

It was against this background of procedure and testimony that defendant took the stand, admitted the sale and delivery of the marijuana and raised the defense of entrapment.

Defendant testified that the and Agregaard had 'smoked' together and Agregaard approached him at the Club 300 and told him that he had a good friend in town who wanted to buy some marijuana; that Agregaard had marijuana for sale but was indebted to the friend and if he sold his friend the marijuana he would expect Agregaard to give him the marijuana to be applied on the debt. Defendant testified that he demurred to the request but finally agreed to make the sale for Agregaard. Thereafter Agregaard showed the defendant where the marijuana was hidden. It was retrieved by the defendant at the time of the sale and the defendant stated that he did not keep any of the money but gave all of it to Agregaard. Agregaard did not appear and testify.

Defendant is a young man 20 years of age and at the time of the incident was a student at a junior college. He offered three character witnesses; one of whom was a neighbor who had known the defendant for 8 years, another a school teacher and the third a part owner of the business where defendant was employed. They all testified that he had a good reputation for truth and veracity in the community in which he lived.

The case was tried on November 20, 1972 after having been set for trial about one month previously. On November 16, 1972 defendant obtained a subpoena for Paul Agregaard and the sheriff's return showed that Paul Agregaard could not be found in his county after diligent search and inquiry.

The first question is whether or not the defense of entrapment will apply to the unlawful sale of narcotics.

At one time the rule in this state was that the unlawful sale of liquor was a violation of the law, regardless of the intent of the seller. This rule was adopted in French v. State, 149 Miss. 684, 115 So. 705 French claimed that he was entrapped by Schneider, an employee of the Federal Schneider, an employee of the Federal Prohibition Forces in the sale of intoxicating liquor. French testified that the liquor which he sold was the property of Schneider; that Schneider owed him a large sum of money and Schneider intended to apply the proceeds of the sale of the whiskey on the debt; and, that Schneider represented to him that, as a Federal Prohibition Officer, he had a right to sell whiskey for the purpose of catching law violators. Appellant testified that he had first objected to selling the whiskey because he had formerly been 'mixed up' in selling whiskey and did not want to become involved again and, except for the representations of Schneider, he would not have been connected with the sale. Defendant raised the defense of entrapment and presented three instructions on entrapment which were refused by the trial court. Schneider testified that the whiskey was the property of French and the sale was made by French to a purchaser who was requested by Schneider's superior to purchase whiskey for the purpose of prosecuting French. In affirming the conviction of French this Court stated:

There is an exhaustive case note appended to the case of Butts v. United States, (8 Cir., 273 F. 35) 18 A.L.R. 143. At page 162, the author lays down this headnote:

'The great weight of authority supports the view that a person making an unlawful sale of liquor is not excused from criminality by the fact that the sale is induced for the sole purpose of prosecuting the seller.'

Marshaled under this headnote are cases from 18 States, as well as a number of federal cases.

There is proof abundant in this case to show every element of a completed sale. Appellant is not charged with a crime involving the personal or property rights of individuals, such as theft, burglary, trespass, rape, and kindred offenses, where the consent of the person or owner might be an element of the offense. It is made a crime against the state to sell whisky; and it will not avail defendant to say, "I had no intention of violating the law." A sale of intoxicants is a violation of the law, regardless of the intent of the seller. Bacot v. State, 94 Miss. 225, 48 So. 228, 21 L.R.A.N.S., 524, 136 Am.St.Rep. 574. The act of Schneider may be of doubtful propriety, and we are not called upon here to commend the same; nevertheless, such acts afford no justification for appellant. Schneider had no more right than did any other individual to consent to the violation of our state prohibition law, or to grant to appellant immunity from prosecution for its violation. If appellant relied upon such representation, and made the sale, he did so at his own peril, and should suffer the consequences. He cannot now say, "I was tempted, and did eat." There are authorities to the contrary, but we deem it safer to align ourselves with what seems to be the great weight of authority.

The court below committed no reversible error in refusing the instructions requested by appellant. The judgment of the lower court will therefore be affirmed. (149 Miss. at 691, 115 So. at 707).

In French, supra, the Court quoted from Bacot v. State, 94 Miss. 225, 48 So. 228, 21 L.R.A.,N.S., 524, 136 Am.St.Rep. 574 (1909), a case where the court held that where intoxicating liquors are sold as a beverage the seller cannot escape liability for an unlawful sale by showing that 'the goods' were guaranteed by the wholesaler from whom he purchased, to be non-intoxicating and that he made the sale honestly so believing. In Bacot the Court stated:

Aside from the (well-known) exception in the case of pharmaceutical preparations, the law punishes the fact of selling intoxicants, regardless of the intent of the seller. He must see to it that the beverages he dispenses are non-alcoholic to the extent that intoxication in any degree will not be produced by even excessive consumption of the beverage. . . . (94 Miss. at 227, 48 So. at 228).

Bacot did not involve entrapment but dealt with a defense based on the good faith of the appellant in believing that he was selling a non-intoxicating beverage.

In McLemore v. State, 241 Miss. 664, 125 So.2d 86, 126 So.2d 236 (1960) McLemore was convicted of offering a bribe to a district attorney to influence his action in a pending suit. The Court held that the state's evidence supported the conclusion that the intent to make the offer to bribe originated in the mind of the defendant and stated with reference to entrapment as a defense the following:

The word 'entrapment', as a defense, has come to mean the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him in its commission and prosecuting him for the offense. However, defendant cannot rely on the fact that an opportunity was intentionally given him to commit the crime which originated in the mind of the accused. The fact that an opportunity is furnished constitutes no defense. 1 Anderson's Wharton's Criminal Law and Procedure (1957), Sec. 132. There is a very clear distinction between inducing a person to do an unlawful act, and setting a trap to catch him in the execution of criminal designs of his own conception. (241 Miss. at 675, 125 So.2d at 91).

Thereafter in Averitt v. State, 246 Miss. 49, 149 So.2d 320 (1963), a case involving grand larceny, this Court laid down the general rule that entrapment was a question for the jury in the following language:

In any case, the defense of entrapment, like any other affirmative defense is a question of fact to be submitted to the jury, along with evidence in chief, as an issue to be determined by the jury. People v. Rodriguez, 61 Cal.App. 69, 214 P. 452 (1923). See also Note 55, 22A C.J.S. Criminal Law § 572, p. 319. (246 Miss. at 63, 149 So.2d at 326).

I...