State v. Farmer, 46907
| Decision Date | 12 May 1973 |
| Docket Number | No. 46907,46907 |
| Citation | 510 P.2d 180,212 Kan. 163 |
| Parties | STATE of Kansas, Appellee, v. James V. FARMER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal action it is the duty of the trial court to instruct the jury on the law applicable to the theories of both the prosecution and the accused so far as they are supported by any competent evidence.
2. Where some evidence is offered by a defendant in support of the defense of entrapment and a conflict is presented whether the intent to engage in an enterprise involving narcotics originated in the mind of defendant or was instigated by officers or agents of the state, the issue becomes a question for the trier of facts. (Following State v. Reichenberger, 209 Kan. 210, 495 P.2d 919, Syl. 1.)
3. Ordinarily the doctrine of entrapment does not extend to acts of inducement on the part of a private citizen who is not an officer of the law.
4. The defense of entrapment is generally not available to a defendant who denies that he committed the offense charged.
5. In an appeal from a conviction for the delivery of a nonnarcotic drug in violation of K.S.A.1971 Supp. 65-2601, 2602 and 2607 (repealed, Laws of 1972, Chapter 234, Section 41, effective July 1, 1972), the record is examined and, as more fully set forth in the opinion, it is held: The evidence was sufficient to require an instruction to the jury on the defense of entrapment.
T. C. Clarkson, Goering, Silver & Clarkson, Wichita, argued the cause and was on the brief for the appellant.
Wallace W. Underhill, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Roger C. Skinner, Asst. Dist. Atty., were with him on the brief for the appellee.
The defendant (James V. Farmer) appeals from a felony conviction by a jury for the delivery of Tedral Expectorant, a nonnarcotic drug, in violation of K.S.A.1971 Supp. 65-2601, 2602 and 2607 (repealed, Laws of 1972, Chapter 234, Section 41, effective July 1, 1972.). Tedral Expectorant, the drug in question, was alleged to be a salt, compound or derivative of a barbituric acid, within the definition of the term 'drug' as set out in 65-2601(1)(a). The activities of defendant and his nephew by marriage, Billy R. Wilson, on November 24, 1971, culminated in the arrest of defendant on the charge set forth.
Wilson picked up defendant in the morning and the two of them proceeded-according to their testimony-to bum around town looking for yard work, cutting and trimming trees and odd jobs. Later in the afternoon defendant became tired and proceeded to his doctor's office to have a prescription filled for an illness which was not identified in the testimony. Upon obtaining the prescription, the defendant and Wilson proceeded to complete a trash hauling job. Thereafter, the two went to a tavern where they played pool and started drinking. Defendant testified that as he began to get drunk Wilson suggested that he sell some of his pills to replenish his funds, which were becoming exhausted.
Wilson's version of the events of the day does not differ from defendant's prior to the conversation concerning the selling of defendant's pills. He also testified that defendant was about out of money and that was the reason he suggested defendant sell some of his pills. Wilson repeated the proposal three or four times. The pair then proceeded to another tavern where they continued their drinking, and Wilson persisted in telling defendant there would be no risk in selling his pills. Wilson further informed defendant that he had done business with a friend whom he had just talked with and there would be no risk in making a sale. In the meantime, Wilson called Detective Stewart of the Wichita Police Department, informing him that defendant had some pills for sale. Wilson further testified that he had never known of defendant selling pills before, or even offering to sell them; that selling the pills was his (Wilson's) idea; and that he talked defendant into it. He said that he set defendant up so that he could be paroled on condition that he go to an alcoholic center in Walla Walla, Washington, for treatment for his alcoholism.
Detective Stewart testified that upon receiving a call from Wilson he proceeded to the Dog House Tavern, and after entering and being seated he was approached by defendant, who sat down beside him and offered to sell him some pills. After haggling over the price and finally agreeing upon a compromise, the defendant proceeded to take the pills from his pocket and count them out. Stewart further testified that he finally made an offer of $100 for the lot, to which defendant agreed. At this point, Stewart produced his badge and placed defendant under arrest.
On appeal, defendant presents numerous specifications of error. However, his only point of consequence concerns the trial court's refusal to submit a requested instruction on the defense of entrapment. Defendant says the testimony of Wilson was sufficient to frame an issue of entrapment which should have been submitted to the jury.
In response the state argues that Wilson was not an agent for the state and, thus, his conduct could not serve as a basis for entrapment; and further that the defense of entrapment was completely inconsistent with defendant's testimony at the trial.
In connection with the state's position it should be noted we recognize the rule that ordinarily the doctrine of entrapment does not extend to acts of inducement on the part of a private citizen who is not acting for an officer of the law. (22 C.J.S. Criminal Law § 45(2), pp. 138, 146.)
It is, of course, the duty of the trial court to instruct the jury on the law applicable to the theories of both the prosecution and the accused so far as they are supported by any competent evidence. (State v. Hamrick, 206 Kan. 543, 479 P.2d 854; State v. Runnels, 203 Kan. 513, 456 P.2d 16; and State v. Ringler, 194 Kan. 133, 397 P.2d 390.)
In applying the foregoing rule it is the function of this court on appellate review to determine whether the record discloses any evidence which, considered in the light most favorable to the defendant, would have justified the giving of the requested instructions. The weight of defendant's evidence is a matter for the jury. (State v. Fitzgibbon, 211 Kan. 553, 507 P.2d 313; State v. Hamrick, supra; and State v. Ringler, supra.)
If the defendant offers some evidence in support of the defense of entrapment it becomes an issue to be determined by the trier of facts. In the recent case of State v. Fitzgibbon, supra, we adhered to our previous holding on this point in State v. Reichenberger, 209 Kan. 210, 495 P.2d 919, wherein we held:
'Where some evidence is offered by a defendant in support of the defense of entrapment and a conflict is presented where the intent to engage in an enterprise involving narcotics originated in the mind of defendant or was instigated by officers or agents of the state, the issue becomes a question for the trier of facts.' (Syl. 1.)
With the foregoing rules in mind, we turn first to the question whether Wilson was acting as an agent for the state or, more specifically, as an agent in collaboration with Detective Stewart. The state takes the position that there was no evidence of agency between Wilson and the state and, thus, there was no material question of fact on this point for the jury to decide (citing State v. Doyle, 201 Kan. 469, 441 P.2d 846). We cannot agree. The evidence is undisputed that Wilson had previously worked as an agent under Detective Stewart's discretion. Concerning this occasion, Wilson did testify that, for reasons of his own, he 'set up' the defendant, but he also indicated that he had some sort of a standing arrangement with Stewart for working on his own. In this connection Wilson's testimony, on cross-examination, appears as follows:
Wilson further testified:
'. . . Kenny (Stewa...
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