State v. Hammond, 53689

• Decision Date: 10 November 1969
• Docket Number: No. 53689,No. 2,53689,2
• Citation: 447 S.W.2d 253
• Parties: STATE of Missouri, Respondent, v. Russell H. HAMMOND, Appellant
• Court: Missouri Supreme Court

Page 253

447 S.W.2d 253

STATE of Missouri, Respondent, v. Russell H. HAMMOND, Appellant.

No. 53689.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1969.

Rehearing Denied Dec. 8, 1969.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

John P. Ryan, Jr., Kansas City, Thomas A. Vetter, Jefferson City, for appellant.

DONNELLY, Presiding Judge.

Defendant, Russell Herndon Hammond, was convicted of the unauthorized sale of narcotic drugs under § 195.020, RSMo 1959, V.A.M.S., by the Circuit Court of Jackson County, Missouri, and his punishment was assessed at imprisonment in the custody of the State Department of Corrections for a term of five years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

On or about July 25, 1966, defendant was introduced by a government informer to Federal Narcotics Agent Charles Klick. On August 1, 1966, defendant accidentally met Agent Klick and Agent Keith Fieger on a street corner in Kansas City. The agents asked appellant if he could obtain any heroin for them. He told them he did not know and that he would have to call his connection, and asked them to call him that night at his home. They called defendant later that evening and he said he could not get in contact with his connection but that they should call him later.

On August 3, 1966, they called him again and defendant asked Agent Klick to come to his place of employment and meet him at 6:00 p.m. Agent Klick proceeded that evening with Agent Fieger to the defendant's place of employment. They then proceeded to a motel bar and sat drinking beer until approximately 8:30 p.m. at which time defendant announced, after several telephone calls, that his man was ready. During this period of time Agent Klick testified they had two or three beers. Agent Fieger testified that they had 'three or four, probably.' The three men then proceeded to an area at approximately 35th and Prospect Avenue in Kansas City, Missouri, and the agents gave the defendant $100. The defendant left their view for approximately five or ten minutes, then came back to the automobile, and handed Agent Klick a brown paper packet and said, 'Let's get out of here.' The agents proceeded to a service station where Agent Klick made a test on a portion of the substance which was in the packet which indicated that the substance was an opium derivative. At that time defendant stated: 'Well, we will go to my house and cut it up,' at which time the agents replied, 'No, there is not enough here, it is too skimpy, we have been shorted, there is not enough quantity there, there is not enough for you.' Defendant then said, 'If you are not going to give me some of the heroin, I should get something.' The agents then gave defendant a $10 bill and drive him to his house.

Defendant testified that he had been continually badgered by both the informer and the agents to find a source for and to buy drugs. He further testified that on the night of the purchase charged in the information he had not asked the agents to come to his place of business, and that going into the bar was the idea of the agents. They had five or six beers and it was only after two or three of these that he agreed to attempt to get some narcotics.

Defendant first contends the trial 'court erred in submitting instruction number 3 to the jury in that it incorrectly stated the rule of law on entrapment as a valid defense.'

This Court spoke on the question of entrapment in State v. Decker, 321 Mo. 1163, 1169, 14 S.W.2d 617, 619, as follows: 'Where the criminal intent 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 aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. But where the criminal intent originates in the mind of the entrapper, and the accused is lured into the commission of the offense charged, in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent.'

Instruction No. 3 reads as follows:

'The defendant offers the defense of unlawful entrapment as to the crime charged in the information.

The law recognizes two kinds of entrapment: unlawful entrapment and lawful entrapment. Where a person has no previous intent to violate the law, but is induced or persuaded by law enforcement officers to commit a crime, he is entitled to the defense of unlawful entrapment, because the law as a matter of policy forbids a conviction in such a case.

On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that Government agents provide what appears to be a favorable opportunity is no defense, but is a lawful entrapment. When, for example, the Government has reasonable grounds for believing that a person is engaged in the illicit sale of narcotics, it is not unlawful entrapment for a Government...