People v. Outten

• Decision Date: 24 January 1958
• Docket Number: No. 34390,34390
• Citation: People v. Outten, 13 Ill.2d 21, 147 N.E.2d 284 (Ill. 1958)
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Robert OUTTEN, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 284

147 N.E.2d 284

13 Ill.2d 21

The PEOPLE of the State of Illinois, Defendant in Error, v.Robert OUTTEN, Plaintiff in Error.

No. 34390.

Supreme Court of Illinois.

Jan. 24, 1958.

James Y. Carter and Lycurgus J. Conner, Chicago, for plaintiff in error.

Latham Castle, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Decatur, Bruce E. Kaufman, Springfield, and L. Louis Karton and Francis X. Riley, Chicago, of counsel), for the People.

DAVIS, Chief Justice.

On a bench trial before the criminal court of Cook County, the defendant, Robert Outten, was found guilty of the unauthorized sale of narcotic drugs in violation of the Uniform Narcotic Drug Act(Ill.Rev.Stat.1955, chap. 38, pars. 192.2, 192.23,) and was sentenced to the penitentiary for a term of 5 to 15 years.A writ of error has been sued out of this court and the defendant here urges that he was entrapped by police officers and for that reason the judgment of conviction should not stand.

The evidence for the People established that Robert Smith, a known narcotics addict, was arrested on a charge of petty larcenty.The next day he was taken to the Narcotics Bureau in the city of Chicago where two policemen made a thorough search of his clothing and person and ascertained that he had no narcotics in his possession.They then gave him certain money in the form of currency and made a memorandum of its serial numbers, which was signed by Smith.The officers then took him to a gasoline station at Sixtieth and Michigan where one of them dialed a telephone number, furnished by Smith who talked to a person whom he identified at the trial as the defendant.Smith stated that he had called the same telephone number 45 or 52 times before and recognized the answering voice as that of defendant.A meeting was arranged to take place at a restaurant located at Seventy-ninth and State streets.The officers took Smith to the restaurant where one of them entered with him.The defendant came in shortly and, after eating a bowl of chili, left the premises with Smith.No conversation of any consequence took place between Smith and the defendant while in the restaurant.On leaving they entered defendant's automobile, preceeded only a short distance when Smith gave defendant $14 and defendant handed him an envelope containing a white powder which was stipulated at the trial to be heroin.When the transaction was eompleted, Smith, by handkerchief, signalled the officers who had followed in another car, and defendant was arrested immediately.The officers searched the defendant, found the currency, and at the trial identified it as the money they gave Smith.Both the envelope containing white powder, which Smith testified he obtained from the defendant, and the currency were received in evidence without objection.

The defendant, the sole witness for the defense, admitted that he knew Smith and had frequently talked to him on the telephone; denied that he handed the envelope containing heroin to Smith; admitted receiving the money, but claimed that it was in partial payment of a loan of $17 which Smith owed him.

Entrapment is the conception and planning of an offense by an officer or other person and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the entrapper.People v. Guagliata, 362 Ill. 427, 200 N.E. 169, 103 A.L.R. 1035;In re Horwitz, 360 Ill. 313, 196 N.E. 208;Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413;15 Am.Jur. 25, par. 336.As a general rule, entrapment can exist only when the criminal intent originates in the mind of the entrapping officer, and if such intent arose in the mind of the accused there is no entrapment, though officers may afford an opportunity for the commission of the offense and use artifice and strategem to apprehend one actually engaged in a criminal enterprise.It is not an instigation to perpetrate a crime if an officer, having reason to believe another is committing a crime, furnishes an opportunity for the commission of the offense, when the purpose is, in good faith to secure evidence against a guilty person and not to induce an innocent person to violate the law.People v. Clark, 7 Ill.2d 163, 130 N.E.2d 195;People v. Lewis, 365 Ill. 156, 6 N.E.2d 175People v. Guagliata, 362 Ill. 427, 200 N.E. 169, 103 A.L.R. 1035;People v. Ficke, 343 Ill. 367, 175 N.E. 543;15 Am.Jur. 24, par. 335.The distinction between what may and may not be done by way of entrapment is clearly made in an annotation in 86 A.L.R. 249 where it is stated that officers may afford opportunities or facilities for the commission of crime and may use artifice to catch those engaged in criminal ventures, but entrapment constitutes a valid defense if the officers inspire, incite, persuade or lure the defendant to commit a crime which he otherwise had no intention of perpetrating.Also seePeople v. Clark, 7 Ill.2d 163, 170, 130 N.E.2d 195.The law frowns upon the seduction of an otherwise innocent person into a criminal career but tolerates the use of decoys and various other artifices to catch the criminal.People v. Schwartz, 109 Cal.App.2d 450, 240 P.2d 1024.Resort to such practices to enforce the law and punish its violation becomes necessary 'in view of the well-known facts that criminals usually work in secrecy and that some unlawful practices are encouraged and protected by a large class of citizens.'15 Am.Jur. 24, par. 335.

The defendant urges that he was unlawfully entrapped, and bases this contention upon an alleged absence of proof that he had been engaged in prior violations of the narcotics law, or direct evidence that the officers knew of any such violations prior to the transaction leading to his arrest.He argues that in absence of such showing by direct evidence, it must be...