Sorrells v. United States

Decision Date19 December 1932
Docket NumberNo. 177,177
Citation53 S.Ct. 210,287 U.S. 435,77 L.Ed. 413
CourtU.S. Supreme Court

Messrs. A. Hall Johnston and John Y. Jordan, Jr., both of Asheville, N.C., for petitioner.

[Argument of Counsel from page 436 intentionally omitted] The Attorney General and Mr. Thomas D.Thacher, Sol. Gen., of Washington, D.C., for the United States.

[Argument of Counsel from page 437 intentionally omitted] Mr. Chief Justice HUGHES delivered the opinion of the Court.

Defendant was indicted on two counts (1) for possessing and (2) for selling, on July 13, 1930, one-half gallon of whisky in violation of the National Prohibition Act (27 USCA). He pleaded not guilty. Upon the trial he relied upon the defense of entrapment. The court refused to sustain the defense, denying a motion to direct a verdict in favor of defendant and also refusing to submit the issue of entrapment to the jury. The court ruled that 'as a matter of law' there was no entrapment. Verdict of guilty followed, motions in arrest, and to set aside the verdict as contrary to the law and the evidence, were denied, and defendant was sentenced to imprisonment for eighteen months. The Circuit Court of Appeals affirmed the judgment (57 F.(2d) 973), and this Court granted a writ of certiorari limited to the question whether the evidence was sufficient to go to the jury upon the issue of entrapment. 287 U.S. 584, 53 S.Ct. 19, 77 L.Ed. —-.

The government, while supporting the conclusion of the court below, also urges that the defense, if available, should have been pleaded in bar to further proceedings under the indictment and could not be raised under the plea of not guilty. This question of pleading appropriately awaits the consideration of the nature and grounds of the defense.

The substance of the testimony at the trial as to entrapment was as follows: For the government, one Martin, a prohibition agent, testified that having resided for a time in Haywood county, N.C., where he posed as a tourist, he visited defendant's home near Canton, on Sunday, July 13, 1930, accompanied by three residents of the county who knew the defendant well. He was introduced as a resident of Charlotte who was stopping for a time at Clyde. The witness ascertained that defendant was a veteran of the World War and a former member of the Thirtieth Division A.E.F. Witness informed defendant that he was also an ex-service man and a former member of the same Division, which was ture. Witness asked defendant if he could get the witness some liquor and defendant stated that he did not have any. Later there was a second request without result. One of those present, one Jones, was also an ex-service man and a former member of the Thirtieth Division, and the conversation turned to the war experiences of the three. After this, witness asked defendant for a third time to get him some liquor, whereupon defendant left his home and after a few minutes came back with a half gallon of liquor for which the witness paid defendant $5. Martin also testifed that he was 'the first and only person among those pres- ent at the time who said anything about securing some liquor,' and that his purpose was to prosecute the defendant for procuring and selling it. The government rested its case on Martin's testimony.

Defendant called as witnesses the three persons who had accompanied the prohibition agent. In substance, they corroborated the latter's story but with some additions. Jones, a railroad employee, testified that he had introduced the agent to the defendant 'as a furniture dealer of Charlotte,' because the agent had so represented himself; that witness told defendant that the agent was 'an old 30th Division man' and the agent thereupon said to defendant that he 'would like to get a half gallon of whisky to take back to Charlotte to a friend' of his that was in the furniture business with him, and that defendant replied that he 'did not fool with whisky'; that the agent and his companions were at defendant's home 'for probably an hour or an hour and a half and that during such time the agent asked the defendant three or four or probably five times to get him, the agent, some liquor.' Defendant said 'he would go and see if he could get a half gallon of liquor,' and he returned with it after an absence of 'between twenty and thirty minutes.' Jones added that at that time he had never heard of defendant being in the liquor business, that he and the defendant were 'two old buddies,' and that he believed 'one former war buddy would get liquor for another.'

Another witness, the timekeeper and assistant paymaster of the Champion Fibre Company at Canton, testified that defendant was an employee of that company and had been 'on his job continuously without missing a pay day since March, 1924.' Witness identified the time sheet showing this employment. This witness and three others who were neighbors of the defendant and had known him for many years testified to his good character.

To rebut this testimony, the government called three witnesses who testified that the defendant had the general reputation of a rum runner. There was no evidence that the defendant had ever possessed or sold any intoxicating liquor prior to the transaction in question.

It is clear that the evidence was sufficient to warrant a finding that the act for which defendant was prosecuted was instigated by the prohibition agent, that it was the creature of his purpose, that defendant had no previous disposition to commit it but was an industrious, law-abiding citizen, and that the agent lured defendant, otherwise innocent, to its commission by repeated and persistent solicitation in which he succeeded by taking advantage of the sentiment aroused by reminiscences of their experiences as companions in arms in the World War. Such a gross abuse of authority given for the purpose of detecting and punishing crime, and not for the making of criminals, deserves the severest condemnation; but the question whether it precludes prosecution or affords a ground of defense, and, if so, upon what theory, has given rise to conflicting opinions.

It is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. Grimm v. United States, 156 U.S. 604, 610, 15 S.Ct. 470, 39 L.Ed. 550; Goode v. United States, 159 U.S. 663, 669, 16 S.Ct. 136, 40 L.Ed. 297; Rosen v. United States, 161 U.S. 29, 42, 16 S.Ct. 434, 480, 40 L.Ed. 606; Andrews v. United States, 162 U.S. 420, 423, 16 S.Ct. 798, 40 L.Ed. 1023; Price v. United States, 165 U.S. 311, 315, 17 S.Ct. 366, 41 L.Ed. 727; Bates v. United States (C.C.) 10 F. 92, 94, note page 97; United States v. Reisenweber (C.C.A.) 288 F. 520, 526; Aultman v. United States (C.C.A.) 289 F. 251.1 The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.

The Circuit Court of Appeals reached the conclusion that the defense of entrapment can be maintained only where, as a result of inducement, the accused is placed in the attitude of having committed a crime which he did not intend to commit, or where, by reason of the consent implied in the inducement, no crime has in fact been committed. 57 F.(2d) page 974. As illustrating the first class, reference is made to the case of a sale of liquor to an Indian who was disguised so as to mislead the accused as to his identity. United States v. Healy (D.C.) 202 F. 349; Voves v. United States (C.C.A.) 249 F. 191. In the second class are found cases such as those of larceny or rape where want of consent is an element of the crime. Regina v. Fletcher, 8 Cox C.C. 131; Rex v. McDaniel, Fost. 121, 127, 128; Connor v. People, 18 Colo. 373, 33 P. 159, 25 L.R.A. 341, 36 Am.St.Rep. 295; Williams v. State of Georgia, 55 Ga. 391; United States v. Whittier, 5 Dill. 35, Fed. Cas. No. 16,688; State v. Adams, 115 N.C. 775, 20 S.E. 722. There may also be physical conditions which are essential to the offense and which do not exist in the case of a trap, as, for example, in the case of a prosecution for burglary where it appears that by reason of the trap there is no breaking.2 Rex v. Egginton, 2 Leach, C.C. 913; Regina v. Johnson, Car. & Mar. 218; Saunders v. People, 38 Mich. 218; People v. McCord, 76 Mich. 200, 42 N.W. 1106; Allen v. State, 40 Ala. 334, 91 Am.Dec. 477; Love v. People, 160 Ill 501, 43 N.E. 710, 32 L.R.A. 139. But these decisions applying accepted principles to particular offenses, do not reach, much less determine, the present question. Neither in reasoning nor in effect do they prescribe limits for the doctrine of entrapment.

While this Court has not spoken on the precise question (see Casey v. United States, 276 U.S. 413, 419, 423, 48 S.Ct. 373, 72 L.Ed. 6323), the weight of authority in the lower federal courts is decidedly in favor of the view that in such case as the one before us the defense of entrapment is available. The government concedes that its contention, in supporting the ruling of the Circuit Court of Appeals, is opposed by decisions in all the other circuits except the Tenth Circuit, and no decision in that circuit suggesting a different view has been brought to our attention. See Capuano v. United States (C.C.A. 1st) 9 F.(2d) 41, 42; United States v. Lynch (D.C.S.D.N.Y., Hough, J.) 256 F. 983, 984; ...

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