People v. Simmons
| Decision Date | 25 September 1972 |
| Docket Number | No. 24920,24920 |
| Citation | 501 P.2d 119,179 Colo. 431 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James SIMMONS, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Patricia W. Robb. Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.
Cosgriff, Dunn & French, Hugh R. Warder, Eagle, Robert H. S. French, Leadville, for defendant-appellant.
The appellant, James Simmons, was convicted of possession of cannabis sativa L., in violation of C.R.S.1963, 48--5--2. His sole contention here is that the evidence shows that he was entrapped into committing the offense and it therefore entitled to acquittal of the charge. Since we find the contention to be without merit we affirm.
The record discloses the following relevant facts leading to appellant's conviction: On the evening of May 10, 1969, appellant, while drinking in a Leadville bar, was approached by one Larry Kasten and asked if he (appellant) could procure some marijuana. Appellant thereupon advised Kasten to come to the appellant's house the next morning to pick up some 'stuff.' There was conflicting testimony as to when and on how many other occasions Kasten had solicited appellant for marijuana, but Kasten admitted to approaching appellant on two other occasions, all within one month of May 10, 1969. On the morning of May 11, 1969, Kasten was met at his house by Donald Hansen, a deputy sheriff of Lake County. After searching Kasten, Hansen placed a five dollar bill in Kasten's pocket. Kasten left his house and went to the home of appellant, where the money was exchanged for a small matchbox containing marijuana. Kasten returned to his home and gave the matchbox to Hansen.
During and after the trial which was to a jury, appellant made motions to suppress and for judgment of acquittal or for new trial. As the basis for these motions he stated that the damaging evidence presented against him in court was acquired through entrapment. All motions were denied.
The defense of entrapment was unknown to the common law and is still not available to defendants in many jurisdictions, See Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1098--1115; Martinez v. United States, 373 F.2d 810 (10th Cir.). However, in Colorado entrapment has been regarded as a defense since at least 1893. As the law on this point has developed, the courts have drawn a strong distinction between (1) the seduction by a government agent of an innocent person into doing an unlawful act not contemplated by him, and (2) a government agent affording an opportunity to one who has the intent and design to commit a...
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