Ossen v. Commonwealth, Record No. 3355.
| Decision Date | 14 June 1948 |
| Docket Number | Record No. 3355. |
| Citation | 187 Va. 902 |
| Parties | JOSEPH OSSEN v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
1. BRIBERY — Entrapment — Refusal of Court to Allow Inspection of Prior Written Statement of Commonwealth's Witness — Case at Bar. — In the instant case, a prosecution for bribery of a police officer, an intermediary who made the arrangements for a meeting between the accused and the police officer was a key witness for the Commonwealth. He testified that there was no planned entrapment and admitted his participation in an attempt to commit the bribery. It was contended that he had made statements to police officers different from his testimony about the planning of the bribery. After the Commonwealth had been allowed to make use of part of his written statement counsel for defendant moved that they be allowed to inspect the whole of the statement and introduced it in evidence for the purpose of impeaching the witness, vouching the fact that the statement would further show that defendant was entrapped according to admissions therein.
Held: That the production of the whole written statement for inspection by counsel for defendant, and as evidence in the impeachment of its author should have been allowed. It was proper to acquaint the jury with the capacity of the witness to err.
2. CRIMINAL LAW — Entrapment — Definition. — Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.
3. CRIMINAL LAW — Entrapment — Whether Inducement Active or Passive. — In cases of entrapment the line of cleavage seems to be whether the inducement or incitement on the part of the officer has been active or passive. If active then for reasons stated the prosecution fails.
4. CRIMINAL LAW — Entrapment — Question for Jury. — In cases of entrapment if there be conflict in the evidence as to whether the criminal intent originated in the mind of the accused or was induced or incited by the officer, then the solution of the question should be submitted to the jury.
5. CRIMINAL LAW — Entrapment — Where Criminal Intent Originates in the Mind of Entrapping Person. — Where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of a crime which he had otherwise no intention of committing in order to prosecute him therefor, no conviction may be had, though the committing of the act is not affected by any question of consent.
6. BRIBERY — Entrapment — Sufficiency of Evidence — Case at Bar. — In the instant case, a prosecution for bribery of a police officer, accused contended that a friend of the police officer made contact with him and suggested that a prosecution against accused could be fixed on the payment of the accused of a certain amount to the police officer. The police officer denied that he ever suggested that accused bring him any money but said that after he had talked with the intermediary he told the latter to bring the accused to the place of the meeting. At the place of meeting accused was arrested and the officer asked him "Were you fool enough to think I would go through with this thing?", to which accused replied "It was your suggestion." The police officer denied this conversation but two other officers corroborated accused.
Held: That the conflicting facts and circumstances and the peculiar relations existing between two of the key witnesses of the Commonwealth presented sufficient evidence upon which the question of entrapment should have been submitted to the jury under proper instructions.
Error to a judgment of the Corporation Court of the city of Norfolk, Part Two. Hon. J. Hume Taylor, judge presiding.
The opinion states the case.
W. R. Ashburn and Broudy & Broudy, for the plaintiff in error.
Henry T. Wickham, Special Assistant to the Attorney General, for the Commonwealth.
Joseph Ossen was indicted on two counts charging him with corruptly giving and offering to give to an executive officer a gift or gratuity, with intent to influence the act and decision of the executive officer in the performance of his duties in a matter then pending before him in his official capacity. Virginia Code, 1942, (Michie), section 4496. He pleaded not guilty. Upon his trial he relied upon the defense of entrapment. The trial court refused to submit the issue of entrapment to the jury and denied a motion to strike the evidence of the Commonwealth as insufficient to sustain a verdict of guilty. The defendant was found guilty and his punishment fixed at five years in the penitentiary. After denial of a motion to set aside the verdict as contrary to the law and the evidence, the defendant was sentenced in accordance with the verdict of the jury.
In a written opinion the trial court held there was no evidence of entrapment, and that the defendant was guilty of bribery by his own admission.
From the judgment against him the defendant obtained this writ of error.
There are numerous exceptions to the rulings of the court on the admission and exclusion of evidence and to the refusal of instructions tendered by the defendant. The principal grounds of error relate to the refusal to submit to the jury the question of entrapment of the defendant; and in connection therewith the refusal of the court to allow inspection and proof of a prior written statement of a Commonwealth's witness for the purpose of impeaching him.
The evidence is somewhat voluminous. For a proper understanding of the questions raised before us, it is necessary to show the background of the case and recite so much of the evidence as relates to the errors assigned.
On November 19, 1946, a warrant was issued on the complaint of Leon Nowitzky, a police officer, charging Joseph Ossen with the murder of Carrie Spady. Nowitzky was in charge of the homicide division of the Norfolk Police Department, and was also assigned to the office of the city coroner to investigate death by violence. In the pursuit of his duty, he had investigated the death of Carrie Spady, who died on November 16, 1946, from a bullet fired from a pistol. Her body was found in an apartment which she shared with Ossen.
After a preliminary hearing before a police justice of the city of Norfolk, Ossen was held for the January, 1947, grand jury of the Corporation Court of that city. The sole witness at the preliminary hearing was Officer Nowitzky, and we are told the only evidence to show the commission of a crime was the opinion of Nowitzky that since there were no powder burns at the point of the entry of the bullet in the body of Carrie Spady, the wound could not have been self-inflicted.
Several days after that hearing, Ossen was shown a textbook by his attorneys, which held that where a bullet is discharged from a revolver muzzle held against the upper part of the human head, no powder burns will appear at the point of entrance of the bullet.*
Thereafter and prior to the meeting of the grand jury, occurred certain circumstances, engagements, and arrangements, which led to a gift of $3,500 by Ossen to Nowitzky and brought on this prosecution. The evidence in connection therewith is in conflict.
Frank West was a principal witness for the Commonwealth. West had been a close, personal friend of Nowitzky for twenty-five years, and for several preceding years had met the officer nearly every morning for coffee at a cafe near the police station. He had, for two years, been engaged in business as a professional bondsman, and Nowitzky had assisted him in obtaining his qualification for that employment. Prior to becoming a bondsman, West had owned and operated a travelling carnival. He was a member of a fraternal organization which was managed by Nowitzky, and Nowitzky had sometimes taken West with him when he was going to make arrests, and had more than once called West to qualify as a bondsman for persons charged with crime.
West testified that early in December, on a Norfolk street corner, Ossen, although previously unknown to him, approached him with the proposal that, "If you can get Leon Nowitzky to throw the case out that is against me before the grand jury, I will give him three grand."
Ossen explained that he was innocent of the murder charge, and that Nowitzky was mistaken in his contention that a contact shot would leave powder burns at the point of entrance of the bullet. He desired Nowitzky to make tests to prove his error.
West said he met Nowitzky three or four days later and told him what Ossen had said. He telephoned Ossen and told him he had talked with Nowitzky. Ossen told him to offer Nowitzky $3,500, with the understanding that his case would have to be dismissed by the grand jury, otherwise he would not give him a penny. There were several other telephone conversations between West and Ossen, and Ossen expressed a desire to meet Nowitzky as soon as possible. West, in the meantime, communicated with Nowitzky and arrangements were made for Ossen to meet the latter on December 24th, at 9:00 o'clock p.m., in an alley near the Pythian Castle. Earlier in the evening of December 24th, West met Ossen in front of the Pythian Castle and told the latter to return at 9:00 p.m. At 9:00 p.m. Ossen returned, met West, and the two proceeded to the parked automobile of Nowitzky where the proposal of Ossen was to be made to Nowitzky. West said he then left; that he did not know whether Nowitzky would take the money or not; or whether Ossen was going to be arrested.
Nowitzky testified that on December 9, 1946, he had a conversation with West concerning the murder charge against Ossen; that he talked to West on December 10th, and on four separate occasions on December 24th; that he informed his...
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