State v. Burnette, 435

• Decision Date: 04 May 1955
• Docket Number: No. 435,435
• Citation: 242 N.C. 164,87 S.E.2d 191,52 A.L.R.2d 1181
• Court: North Carolina Supreme Court
• Parties: , 52 A.L.R.2d 1181 STATE of North Carolina v. Bernice Lee BURNETTE.

Page 191

87 S.E.2d 191

242 N.C. 164, 52 A.L.R.2d 1181

STATE of North Carolina v. Bernice Lee BURNETTE.

No. 435

Supreme Court of North Carolina.

May 4, 1955

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the state.

Taylor & Mitchell, Raleigh, for defendant-appellant.

PARKER, Justice.

We have here for determination (1) the sufficiency of the evidence to carry the case to the jury, and (2) the adequacy and correctness of the charge.

The defendant assigns as error the failure of the court to sustain his motion for judgment of nonsuit made at the close of the State's case, the defendant offered no evidence, on the charge of assault with intent to commit rape; and also assigns as error a similar ruling of the Court on the charge of assault on a female. His argument in support of these motions is based on two grounds: one, no assault was committed, and two, consent of Frances Buffaloe.

The defendant contends that the State's evidence shows that he is the victim of an entrapment, and that the case should have been nonsuited. Before discussing this contention, we advert to certain relevant principles of law.

It is the general rule that where the criminal intent and design originates in the mind of one other than the defendant, and the defendant is, by persuasion, trickery or fraud, incited and induced to commit the crime charged in order to prosecute him for it, when he would not have committed the crime, except for such incitements and inducements, these circumstances constitute entrapment and a valid defense. State v. Marquardt, 139 Conn. 1, 89 A.2d 219, 31 A.L.R.2d 1206 and Annotation at page 1212; Butts v. U. S., 8 Cir., 273 F. 35, 18 A.L.R. 143 and Annotation at page 149; Robinson v. U. S., Cir., 32 F.2d 505, 66 A.L.R. 468 and Annotation at page 482; Sorrells v. U. S., 287 U. S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249 and Annotation at page 265; People v. Finkelstin, 98 Cal.App.2d 545, 553, 220 P.2d 934; Falden v. Commonwealth, 167 Va. 549, 555, 189 S.E. 329; State v. Jarvis, 105 W.Va. 499, 500, 143 S.E. 235; 22 C.J.S., Criminal Laws, § 45, pp. 99-100; 15 Am.Jur., Criminal Law, Sec. 336. See also State v. Love (State v. West), 229 N.C. 99, 47 S.E.2d 712; State v. Godwin, 227 N.C. 449, 42 S.E.2d 617.

In the leading case of Butts v. U. S., supra , Sanborn, C. J., said for the Court: 'The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it.'

A clear distinction is to be drawn between inducing a person to commit a crime he did not contemplate doing, and the setting of a trap to catch him in the execution of a crime of his own conception. State v. Jarvis, supra; State v. Mantis, 32 Idaho 724, 187 P. 268; 15 Am.Jur. Criminal Law, p. 24; 22 C.J.S., Criminal Law, § 45, pp. 100-101.

It seems to be the general rule in those cases where the doing of a particular act is a crime regardless of the consent of anyone, that entrapment is not available as a defense to a person, who has the intent and design to commit a crime originating in his own mind, and who does in fact commit all the essential elements constituting it, merely because an officer of the law, or another, in his effort to secure evidence against him for a prosecution, affords him an opportunity to commit the criminal act, or purposely places facilities in his way or aids and encourages him in the perpetration of the crime which had its genesis in his own mind. State v. Hughes, 208 N.C. 542, 181 S.E. 737; State v. Adams, 115 N.C. 775, 20 S.E. 722; Soreells v. U. S., supra; Grimm v. U. S., 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550; State v. Marquardt, supra; Butts v. U. S., supra; Robinson v. U. S., supra; Falden v. Commonwealth, supra; Annotations 18 A.L.R. 149, 66 A.L.R. 482, 86 A.L.R. 265; 15 Am.Jur., Criminal Law, pp. 24-25; 22 C.J.S., Criminal Law, § 45, pp. 100-101.

This Court said in State v. Salisbury Ice & Fuel Co., 166 N.C. 366, 81 S.E. 737, 739, 52 L.R.A.,N.S., 216: 'A very similar case is State v. Smith, 152 N.C. 798, 67 S.E. 508, 30 L.R.A.,N.S., 946, for selling whisky contrary to the statute, in which case a police officer, suspecting the defendant, employed one to buy whisky from the defendant and furnished the money. The defendant, like all victims caught in a trap, viciously assailed the trap. He said he ought not to be punished because the prosecutor had 'connived' at his offense. This court said, 'It is not the motive of the buyer but the conduct of the seller which is to be considered,' and held that the defendant was properly convicted.'

In People v. Conrad, 102 App.Div. 566, 92 N.Y.S. 606, 607, affirmed in 182 N.Y. 529, 74 N.E. 1122, in a Memorandum Decision, the defendant was convicted of an attempt to commit the crime of an abortion. The Appellate Division of the Supreme Court said: 'The conviction of the defendant was brought about by means of a trap arranged by the officers of the County Medical Society. It is claimed that, as the defendant was lured into the commission of the claimed overt acts, he cannot be punished therefor. This contention has recently been the subject of examination by this court and by the Court of Appeals, and decided adversely to the contention of the defendant. He was not a passive instrument in the hands of the entrapping parties. He did the act with which he was charged voluntarily, with full knlwleged of the subject, and of the consequences which would flow therefrom. Under such circumstances, setting a trap by which he was caught is not a defense.'

In certain crimes consent to the criminal act by the person injured eliminates an essential element of the offense, and is, therefore, a good defense. Where a person arranges for a crime to be committed against himself or his property and aids, encourages or solicits the commission thereof, such facts are a good defense to the accused. However, if a person knows a crime is contemplated against his person or property, he may wait passively and permit matters to go on, or create the conditions under which the crime against himself may be committed, for the purpose of apprehending the criminal without being held to have assented to the act. State v. Adams, supra; State v. Hughes, supra; State v. Nelson, 232 N.C. 602, 61 S.E.2d 626; State v. Abley, 109 Iowa 61, 80 N.W. 225, 46 L.R.A. 862, 77 Am.St.Rep. 520; People v. Hartford L. Ins. Co., 252 Ill. 398, 96 N.E. 1049, 37 L.R.A.,N.S., 778; State v. Currie, 13 N.D. 655, 102 N.W. 875, 69 L.R.A. 405, 112 Am.St.Rep. 687; Annotations 18 A.L.R. 149 et seq., 66 A.L.R. 482 et seq., 86 A.L.R. 265 et seq.; 15 Am.Jur., Criminal Law, Sec. 334; 22 C.J.S., Criminal Law, § 42.

In People v. Hartford L. Ins. Co., supra [252 Ill. 398, 96 N.E. 1052], the Illinois Supreme Court said: 'One cannot arrange for a crime to be committed against himself or his property and aid, encourage, or solicit the commission of the crime (Love v. People, 160 Ill. 501, 43 N.E. 710, 32 L.R.A. 139), but if he does not induce or advise the commission of the crime and merely creates the condition under which an offense against the public may be committed, the rule does not apply (People v. Smith, 251 Ill. 185, 95 N.E. 1041).'

In State v. Hughes, supra, the defendants were charged with feloniously breaking into a store to commit larceny. The State's evidence showed that the two defendants broke into and robbed the store. Defendants ants offered evidence with tended to show that one defendant went to an employee of the store and suggested that the employee give him the safe combination and, if so, the loot would be divided with him; the employee reported the conversation to his superior officer, who instructed him to give the defendant a purported combination to the safe; thereafter the employee gave the defendant a combination and advised him how to bread into the store and when the safe would contain a large sum of money; and that the officers seized them in the execution of their offense. The defendants contended that the owner had consented to the offense, and therefore they were not guilty. The lower court excluded this evidence of the defendants, and this Court held it properly did so, saying 'If it had been admitted, we do not think it would be a defense for the defendants.' [208 N.C. 542, 181 S.E. 745.]

State v. Goffney, 157 N.C. 624, 73 S.E. 162, is a case where consent to the crime was a defense. In that case the evidence ws that the owner of the building entered, directed his servant Farmer to induce the defendant to break in his store; that the servant obeyed his orders, and the servant and the defendant entered the store together; and that the owner was present watching them and arrested defendant after he entered.

In State v. Decker, 326 Mo. 946, 33 S.W.2d 958, 962, the defendant was convicted of bank robbery. The Supreme Court of Missouri held this instruction on the issue of entrapment properly declared the law on the case: 'It informs the jury that, where the criminal intent to commit a crime originates in the mind of the defendant on trial and the offense is accomplished, it constitutes no defense that an opportunity is furnished or that an officer aided the accused in the commission of the crime in order to obtain evidence upon which to prosecute him. It then informs the jury that, if they find from the evidence that the criminal intent, if any, to rob the bank originated in the mind of defendant, and the robbery was accomplished, it is no defense to said robbery that an opportunity was furnished or that an officer aided.'

This is the sixth headnote in State v. Snider, 111 Mont. 310, 111 P.2d 1047: 'Where evidence showed that criminal intent to steal sheep originated in mind of accused and that at most owner and sheepherder who placed sheep in shed from which 56 lambs were loaded at night by accused remained silent and failed to place obstacles in way of accused and...