Smith v. State, 46068
| Decision Date | 24 May 1971 |
| Docket Number | No. 46068,46068 |
| Parties | Calvin Paul SMITH v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Robert L. Lennon, Elliott E. Schlottman, Hattiesburg, for appellant.
A. F. Summer, Atty. Gen., by Timmie Hancock, Sp. Asst. Atty. Gen., Jackson, for appellee.
Appellant, Calvin Paul Smith, was indicted, tried and convicted for the crime of the unlawful sale of LSD and was sentenced to serve a term of seven years in the State Penitentiary and to pay a fine of $1,000. From this conviction and sentence, he appeals.
Appellant, in his assignments of error, assigns several grounds for the reversal of this case, but, in his brief, he reduces these assignments to two propositions: (1) Appellant contends that he was arrested and convicted for the unlawful sale of LSD through the use of illegal entrapment on the part of the state's officers and agents; and (2) that the trial court was in error in not allowing the jury to hear testimony which would have shown the elements of illegal entrapment.
The jury was justified in finding from the evidence on behalf of the state that on the seventeenth day of December 1969 Ronnie White, an investigator for the narcotics division of th Mississippi Highway Patrol, accompanied by an informer, Charles Smith, went to the apartment of the appellant in the City of Hattiesburg. White, who represented himself to be a shoe salesman, was introduced to appellant by Smith. White informed appellant that he desired to purchase some drugs for resale. Appellant told him that he had some mescaline, a synthetic LSD, but that White would have to purchase at least fifty capsules at $3.25 per capsule. After being unable to purchase a lesser amount, White told appellant that he would take the fifth capsules. Appellant then told White that he did not have the 'stuff' there and that he would habe to go to another place to pick it up. The three drove in Charles Smith's vehicle to an apartment house on Water Street. Appellant then informed White that he could not go into the building with him and that he would have to have the money in advance. White gave appellant $170 and appellant went into the apartment and in a short time, returned with a plastic bag containing some pink capsules. Appellant delivered the bag to White along with $8 in change. White turned the bag, with its contents, over to the state toxicologist, who determined that the capsules were LSD. Later White attempted to purchase more drugs from appellant but was unable to do so.
Appellant testified that at the time of this transaction he was attending the University of Southern Mississippi and was employed at the Mississippi Wholesale Florist Company. Part of his job was delivering flowers, and one of the customers was Charles Smith. On several occasions Smith has asked him to purchase drugs for him, but appellant told him he did not know where to get any. He said that he finally told Smith that he would help him get some mescaline, and the reason he did so was so that Smith would leave him alone. When Ronnie White and Smith came to his apartment, White asked him if the mescaline was in the house, and he told them that it was over at the other apartment and that they would have to go there to get it. They got in Smith's vehicle and proceeded to the Water Street apartments. He then asked White if he had the money, and White told him he did and handed it to him. He went into Marvin Presley's apartment and handed him the money. Presley gave him $8 change and went behind the apartment and got the mescaline from where it was hidden in a motorcycle. He then returned and handed White the mescaline and change. He said that he had never sold any drugs to anyone and he did not consider that he was selling drugs when he made this purchase for White. On cross-examination he admitted that he freely and voluntarily went with White and Smith and procured the drugs for them and that at that time he knew it was a violation of the law of this state to furnish or supply LSD of mescaline.
The trial court granted, at the request of the appellant, three instructions dealing with his defense of entrapment. One of which instructed the jury that if it believed that the defendant had never before committed such an offense as the state had charged against him and never conceived any intention of committing the offense being prosecuted, the fact that the officers of the state incited any be persuasion and representation,...
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