Lindsay v. State

• Decision Date: 06 September 1960
• Docket Number: 6 Div. 732
• Citation: 125 So.2d 716,41 Ala.App. 85
• Parties: Frank J. LINDSAY v. STATE.
• Court: Alabama Court of Appeals

Page 716

125 So.2d 716

41 Ala.App. 85

Frank J. LINDSAY v. STATE.

6 Div. 732.

Court of Appeals of Alabama.

Sept. 6, 1960.

Rehearing Denied Oct. 4, 1960.

Geo E. Trawick, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Jerry L. Coe, Asst. Atty. Gen., for state.

CATES, Judge.

Lindsay was convicted of bribery. Code 1940, T. 14, § 63, as amended. He was sentenced to seven years imprisonment. The pertinent count of the indictment reads:

'The Grand Jury * * * charges that before finding of this indictment Frank J. Lindsay whose name to the Grand Jury is otherwise unknown, did corruptly offer, promise, or give to Robert L. Love and James E. Quinn, who were then and there police officers of the City of Fairfield, Alabama, after their employment, a gift, gratuity or thing of value, to-wit: $850.00, with intent to influence their act, decision or judgment on a matter or proceeding which was then pending, to-wit: an investigation of an illegal lottery operation, commonly known as a numbers game or policy game, then and there being carried on or operated in said City or the police jurisdiction thereof; * * * against the peace,' etc.

The following questions have been put to us: (1) Was Mr. Lindsay illegally entrapped into making the payments? (2) Was the indictment adequate (a) since it did not--as does the statute--say 'in their official capacities,' or (b) because no ordinance laying down the duties of Fairfield policemen was averred? (3) Was the joinder of two payees in one count wrong? (4) Was it error to admit evidence of seven other later payments after proof of Lindsay's paying the first bribe of $100? (5) Did the proper formalities attend the admission of Minifon magnetic wire recordings?

The State's evidence tended to show:

In June, 1958, Messrs. Love and Quinn became detectives on the police force of the city. They were investigating lotteries in the nature of numbers or policy games bearing names such as The King and Queen, The Bell, The Joe, The G. I., The F. F., The Night Rider and The Big Six.

From a batch of some seventy balls bearing different numbers, twelve are drawn. To make a 'gig' which pays a dollar for a dime, the player must have picked three of the numbers on the twelve balls 'in combination.' The players carry 'Dream Books' which give clues to numbers from dreams or allegorical circumstances.

Shortly before August 11, 1958, Lindsay telephoned Love at police headquarters and arranged to meet him and Quinn. The three first met August 11 at the Howard Johnson restaurant in Central Park, Birmingham.

Lindsay explained that he carried on The G. I. lottery. A 'station operator,' Lily Mae Calhoun, handled 'The G. I.' for him in Fairfield.

Love and Quinn promised him no protection but agreed to meet him again. The second meeting took place a fortnight later. Lindsay announced business was better; he had made $190 in Fairfield in four and a half days.

After talking of expanding, Lindsay asked them how much would it cost to operate in Fairfield. Love and Quinn said that they didn't know 'about the lottery operation,' they 'were young.' Lindsay then remarked that he would give them a hundred dollars, to which Quinn rejoined, 'Is that apiece?' Lindsay replied, 'No. I'll give you a hundred dollars for both of you.'

Love and Quinn again made no promises but took the money which Lindsay said was for him to go ahead with his operation in Fairfield. Lindsay set up another meeting about a month later.

As soon as they left Lindsay, the two detectives met Mr. John Boyce, a special agent of the intelligence division of the Internal Revenue Service, who had encouraged them to strike up contact with policy operations. They gave the bribe money to Boyce. After marking each bill, Boyce in turn gave it to Mr. Thomas Ward, Chief of the Fairfield Police.

For the next eight months Love and Quinn were double agents, of police and of policy. They met Lindsay at one or the other of two rendezvous (both in the Bessemer Division of Jefferson County) where, on six occasions, he paid them $100 and twice handed over $125.

Before and after each meeting, Boyce would search them, verifying the net increase in their worth. In three instances he strapped a Minifon magnetic wire recorder under Love's clothing. The recordings were played before the jury.

In his conversation, August 25, 1958 (which was the first one recorded), Lindsay told Love and Quinn that in Birmingham he gave each police prowl car, 'individuals,' $25 a month. 'Used to give them $40.00, back when we were operating right.'

The defense evidence varied: Lindsay's account was that Love approached him through Lily Mae who reported that the detectives wanted to get in touch with him. She gave him the telephone number. He testified Love said, 'I want to see you. Where can we meet?'

When the three got together at the restaurant, Lindsay's testimony went, Love asked him if he thought he could make money if the two detectives left him alone.

On the second meeting, Love (according to Lindsay) demanded, 'Well, how much can you afford to give us?' Whereupon Lindsay asked, 'Well, would a hundred be all right? A hundred a month?'

Lindsay emphasized that Love and Quinn first suggested that he pay them. Moreover, at one of the later meetings they brought along Barney Cohen, another policy operator, who wanted a monopoly at Fairfield. Lindsay's testimony implied that Love and Quinn wanted Cohen to take over Lindsay's Fairfield operation.

Unlawful entrapment as a defense to an offense where consent is not material is ordinarily a question resting on the facts of a particular case. It rests on the defendant's admitting the deed but disclaiming the thought. 22 C.J.S. Criminal Law § 45; 15 Am.Jur., Criminal Law, §§ 335-37; Anderson, Wharton's Cr.L. and Proc., § 132; Johnson v. State, 36 Ala.App. 634, 61 So.2d 867; but cf. Allen v. State, 40 Ala. 334, and Browning v. State, 31 Ala.App. 137, 13 So.2d 54.

In the annotation in 69 A.L.R.2d 1397, at page 1401, we find:

'* * * whether there was an illegal entrapment in a bribery prosecution is ordinarily a matter which should be submitted to the jury under proper instructions, particularly where the testimony of the accused tends to support the defense, or the evidence with respect to entrapment is conflicting. * * *'

The affirmance in Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, is based on a conflict of evidence requiring a jury.

In Genesis 3:13 we hear an unsuccessful plea of entrapment to Original Sin, 'The serpent beguiled me and I did eat.'

One may read long and far to find a better exposition than that of Learned Hand, J., in United States v. Sherman, 2 Cir., 200 F.2d 880, 882:

'* * * In Sorrells v. United States, supra [287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413] all the Court agreed as to the meaning of inducement: it was that someone employed for the purpose by the prosecution had induced the accused to commit the offense charged, which he would not have otherwise committed. That was a defence, to which, if proved, the minority thought there was no reply, but to which the majority thought that there was, and obviously we must accept that view. Indeed, it would seem probable that, if there were no reply, it would be impossible ever to secure convictions of any offences which consist of transactions that are carried on in secret. On the other hand there are difficulties in knowing what should be a valid reply. As we understand the doctrine it comes to this: that it is a valid reply to the defence, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offence charged, whenever the opportunity offered. In that event the inducement which brought about the actual offence was no more than one instance of the kind of conduct in which the accused was prepared to engage; and the prosecution has not seduced an innocent person, but has only provided the means for the accused to realize his preexisting purpose. The proof of this may be by evidence of his past offences, of his preparation, even of his 'ready complaisance.' Obviously, it is not necessary that the past offences proved shall be precisely the same as that charged, provided they are near enough in kind to support an inference that his purpose included offences of the sort charged.

* * *

* * *

'Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offence charged in the indictment; (2) if, so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. * * *' (Italics supplied.)

In 1958 the Supreme Court of the United States in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (on appeal from another conviction), and in Masciale v. United States, supra, adhered to Sorrells. As Wisdom, J., said in Washington v. United States, 5 Cir., 275 F.2d 687, 689:

'* * * Under Sorrells, Sherman, and Masciale, the issue of entrapment is a question for the jury, unless as a matter of law the defendant has established beyond a reasonable doubt that he was entrapped. * * * [citing cases] In determining if there has been entrapment as a matter of law this Court has considered not only the predisposition of the accused but has weighed also the conduct of the government agents. * * *'

Under our jurisprudence to raise 'entrapment as a matter of law,' the defendant would have to (1) move the court (a) to exclude the evidence, or (b) to give a written affirmative instruction, or (c) to file a motion for a new trial; and (2) support one of these requests by uncontradicted evidence of unimpeachable weight and credibility, e. g., by the undisputed testimony of the State's own witnesses.

Even though the State, to secure evidence, is shown to have tempted the accused, yet if there is proof of his active appetite for forbidden fruit, ¹ the issue of causation is one of fact for...