State v. Hochman

• Decision Date: 03 December 1957
• Citation: 86 N.W.2d 446,2 Wis.2d 410
• Parties: , 77 A.L.R.2d 784 STATE of Wisconsin, Respondent, v. Sam R. HOCHMAN, Appellant.
• Court: Wisconsin Supreme Court

Page 446

86 N.W.2d 446

2 Wis.2d 410, 77 A.L.R.2d 784

STATE of Wisconsin, Respondent, v. Sam R. HOCHMAN, Appellant.

Supreme Court of Wisconsin.

Dec. 3, 1957.

Morton Gollin, Milwaukee, Herbert S. Bratt, Milwaukee, of counsel, for appellant.

Stewart G. Honeck, Atty. Gen., William A. Platz, Asst. Atty. Gen., William J. McCauley, Dist. Atty., Hugh R. O'Connell, Sp. Asst. Dist. Atty., Milwaukee, for respondent.

STEINLE, Justice.

There is sharp conflict as to material particulars in the evidence adduced by the state and that presented on behalf of the defendant. The weight and credibility of the evidence were for the court to determine. Of record there is evidence which the court was entitled to deem credible to the effect that the defendant owned and operated a retail novelty shop in Millwaukee; that police officer James Psarros, while on police duty and in plain clothes, visited the defendant's store on five occasions between January or February 1955 and April 1955 with a view of attempting to purchase some obscene items; that the officer's identity as a member of the Milwaukee Police Department was not revealed to the defendant; that on the first of such visits the police officer introduced the subject of desiring to purchase books and playing cards containing obscene pictures; that the defendant referred to such merchandise as 'hotter stuff' and told the police officer that he only sold it to his better customers, and invited the officer to become a regular customer so that he would get to know him better; that on the occasion of the first visit the defendant requested the police officer's name, address, etc., which information was given; that on April 14, 1955 when the police officer visited the store, the defendant told him that if he would return on the following day, the defendant would sell him 'some items;' that on April 15, 1955 when the officer went to the store, the defendant told him that he was about 15 to 20 minutes late in coming,--that he doesn't keep the 'hot stuff' in the store,--that he had sold it to another customer,--that as to delivery it is necessary that the officer be at the store at the exact time when the defendant picks it up from a salesman; that on April 22, 1955 the defendant telephoned to the officer at his home and stated that he had the items and that the officer could call for them; that after receiving the telephone message, the officer proceeded to the defendant's establishment; that the officer inquired as to whether the defendant had the 'stuff' and the defendant gave an affirmative answer; that after waiting until there were no other customers in the store, the defendant went to a rear counter from which he obtained a bag containing the books and playing cards in question, and delivered the same to the officer who paid the price asked, to wit $15; that the officer then opened the bag, examined the items, observed that they were obscene and placed the defendant under arrest.

The defendant contends that: (a) The acts of the officer constituted entrapment; (b) The books and playing cards ought to have been excluded under the motion to suppress said evidence on ground that it was obtained by entrapment; (c) With the books and playing cards excluded from evidence, there was insufficient basis for the judgment of conviction.

The state maintains that the defendant was not 'entrapped.' It also submits that under proper procedure the issue of entrapment may not be raised by a motion to suppress the evidence.

Entrapment is the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal prosecution against him. See State v. Marquardt, 1952, 139 Conn. 1, 89 A.2d 219, 31 A.L.R.2d 1206; State v. Jarvis, 1928, 105 W.Va. 499, 143 S.E. 235; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249; 15 Am.Jur., Criminal Law, p. 24, sec. 335; 22 C.J.S. Criminal Law § 45(a), p. 100.

There is a very clear distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of a criminal design of his own conception. 15 Am.Jur., Criminal Law, p. 24, sec. 335; 22 C.J.S. Criminal Law § 45, pp. 100, 101.

In certain crimes consent to the criminal act by the person complaining thereof eliminates an essential element, and hence constitutes a good defense. Topolewski v. State, 1906, 130 Wis. 244, 109 N.W. 1037, 7 L.R.A.,N.S., 756. Except for such cases the general rule is that if the criminal intent or the willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity is furnished or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him for it, constitutes no defense. However, if the evil intent and the criminal design originate in the mind of the government agent, and the accused is lured into the commission of the offense charged in order to prosecute him for it, when he would not have committed an offense of that character except for the urging of the agent, no conviction may be had. State v. Marquardt (Conn.) supra; 15 Am.Jur., Criminal Law, pp. 24, 25, sec. 335; 22 C.J.S. Criminal Law § 45(a), p. 100.

In the case at bar the situation is comparable to that in Piper v. State, 1930, 202 Wis. 58, 231 N.W. 162. There the defendant Piper, a barber, was prosecuted for practicing medicine without a license. An inspector for the Board of Medical Examiners visited the defendant with a request for medical treatment for a claimed ailment, the feigned symptoms of which were explained by the inspector to the defendant. A bottle of medicine was sold by the defendant to the inspector. The defendant was arrested. He defended on ground that the deceit of the inspector in inducing him to act rendered inadmissible in evidence the transaction between himself and the inspector. In disposing of such defense this court said (202 Wis. at pages 63, 64, 231 N.W. at page 165):

'* * * 'Merely setting a trap to catch a would-be criminal by affording him the freest opportunity to commit the offense' does not sacrifice any element of the offense. Topolewski Case, supra, p. 253. [Topolewski v. State, 130 Wis. 244, 109 N.W. 1037.] 'The fact that the party against whom a crime is contemplated suggests, aids, encourages, or abets the commission of the offense or sets a trap for the accused is not a defense where the accused has done every act essential to the completion of the offense.' The quotation is from the dissenting opinion of Mr. Justice BARNES in the Koscak Case, supra, p. 270, [Koscak v. State, 160 Wis. 255, 152 N.W. 181] but it is a correct statement of the rule, as the authorities there cited in support show, and is not at all in conflict with anything held or stated in the majority opinion. The inspector did nothing to relieve the defendant from any element of the offense. The situation is analogous to those involving illegal sales, ordering of obscene books by mail, and detecting fraudulent use of the mails. The conduct of the defendant, not the motive or deception of the inspector, is considered. 1 Bishop, Crim.Law (9th ed.) 686, 687.'

We are in accord with the observation in 15 Am.Jur., Criminal Law, pp. 24, 25, sec. 335, that:

'To the argument that the act is done at the instigation or solicitation of an agent of the government, the courts have responded that the purpose of the detective is not to solicit the commission of the offense, but to ascertain if the defendant is engaged in an unlawful business. It is no defense that a person, acting as a decoy, furnished an opportunity for the commission of the offense. Such conduct is held not to procure the offense to be committed, the theory being that the offender acts of his own volition and is simply caught in his own devices.'

Here, as in Piper v. State, supra, the officer offered an opportunity for the commission of the offense. Here, as there, the defendant committed each and every act essential to the offense charged. The defendant's statements to the officer on the occasion of the first visit to the effect that he sold the 'hotter stuff' only to his better customers, and his encouragement to the officer to become a regular customer so that the defendant would get to know him better, coupled with the statement to the officer on a subsequent visit that the officer arrived too late and that the stuff was sold to another customer, clearly demonstrated a willingness and an intention to commit the offense as charged. When the sale was consummated the offense was completed. In the light of this evidence the defendant's contention that the offense was the product of the police officer's creative activity cannot be sustained.

It is inconceivable that an individual free from taint of engaging in the unlawful traffic of selling obscene matter would declare against interest that he sold the 'hotter stuff' only to his better customers and immediately thereafter suggest that the officer become a regular customer, indicating thereby that if he did, he would be served. It cannot be said that such demonstration denoted the attitude of an innocent person who was lured into the commission of the crime by the...