State v. Love
| Citation | 47 S.E.2d 712,229 N.C. 99 |
| Decision Date | 19 May 1948 |
| Docket Number | 651,653 |
| Parties | STATE v. LOVE. SAME v. WEST. |
| Court | United States State Supreme Court of North Carolina |
Harry McMullan, Atty. Gen., and T. W.
Bruton Hughes J. Rhodes and Ralph Moody, Asst. Attys. Gen., for the State.
J H. Barrington, Jr., T. A. McNeill, and McLean & Stacy all of Lumberton, for defendant-appellant, Love.
J. S. Butler, of St. Pauls, and T. A. McNeill and McLean & Stacy, all of Lumberton, for defendant-appellant, West.
These defendants, because of their reputation, having been suspected of the illegal possession and sale of whisky, were both brought to book in the following manner: On request made by local authorities, Agent Bradshaw of the State Bureau of Investigation was assigned to the task of assisting them. He repaired to Robeson County and after a conference with the principal enforcement officers, in which a plan of operation was adopted, Bradshaw, being at the time dressed in plain clothes, set out to the places of residence, or business, of each of the defendants and, separately, contacted them, without disclosing his identity and official character. He asked each defendant to sell him some whisky; and, without further inducement, each sold to him a quantity of liquor for which he paid, tagging the purchase for use as evidence. He was afterward reimbursed for the sum thus spent. Upon his report the indictments were brought, and in each case the defendant was convicted on his testimony. Each appealed. The exceptions discussed in this opinion were to the action of the court in overruling defendants' demurrers to the evidence and motions for judgment of nonsuit, and to the specific instructions to the jury hereinafter noted.
The cases, involving practically identical features as to fact and law, were argued together in this Court, and it has been considered proper to review them together and embrace them in a single opinion. We shall, perhaps, sometimes refer to the 'defendants' collectively, meaning the defendant in each case,-- leaving segregation of cases, defendants, and exceptions to the reader for separate application. There is no substantial difference between the two cases in history or the incidents of trial.
1. In this Court counsel for the appealing parties renewed the argument made in the court below that defendants were made the victims of entrapment on the part of State officers concerned in the prosecution, and that this, clearly appearing in the evidence, entitles them to a nonsuit as a matter of law; and on that ground press their exceptions to the overruling of the demurrers.
The trial court instructed the jury that if they should find that the defendants were induced to violate the law by some misrepresentations of fact, by some trickery and scheme, and that they would not have done so except for the misrepresentation and trickery and chicanery practiced upon them, the evidence would not be sufficient to convict, and submitted the evidence. Counsel for the appellants consider the implied definition of entrapment inadequate and misleading since, as they contend, it is not essential to that defence that the subject should be induced to violate the prohibition law through a humanitarian appeal or false or fraudulent deception calculated to lead an innocent person into the invited violation of law, and that the evidence of instigation and procurement by the State is sufficient to justify a nonsuit.
The State questions whether the appellants' approach to this position does not more properly challenge the wisdom and fairness of the proceeding rather than its validity; presenting a moral rather than a judicial problem, which, albeit debatable, must yield to judicially approved practice.
The judicial definitions of entrapment as used by different courts dealing with the subject afford a choice between two main classifications: Some authorities would consider the definition of entrapment as a valid defence essentially complete where the officers or agents of the State have instigated or procured a violation of law for the purpose of punishing the act thus brought about, without the presence of fraud or persuasion. See 14 Words & Phrases, Perm. Ed., 'Entrapment,' p. 714. A decided majority would superadd persuasion, trickery, fraud, practiced upon a person who was not inclined to violate the law, and who otherwise would not have done so. Typical of the latter is Sorrell v. United States, 287 U.S. 435, 53 S.Ct. 210, 217, 77 L.Ed. 413, 86 A.L.R. 249, 259, in which we find: 'Entrapment is a conception and planning of an offence by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. ' See also dissenting opinion and annotation in A.L.R.
Our own court has not found it exigent in any cited case we can find to give a formal definition of the defence as applied here. In State v. Adams, 115 N.C. 775, 20 S.E. 722, the charge was larceny, and since the question of consent was involved, whatever appears by way of dictum is of little help. But see State v. Godwin, 227 N.C. 449, 42 S.E.2d 617, 619, in which it was observed that the case of the prosecution depended 'upon a 'broken reed"' upon the facts of that case, because of the 'persistent entreaty and duplicity' of the expectant purchaser. Cp State v. Smith, 152 N.C. 798, 67 S.E. 508, 30 L.R.A.,N.S., 946; State v. Hopkins, 154 N.C. 622, 70 S.E. 394; State v. Ice Co., 166 N.C. 366, 81 S.E. 737, 52 L.R.A.,N.S., 216, Ann.Cas.1916C, 456.
Considerations of the purity and fairness of the courts and the agencies created for the administration of justice gravely challenge the propriety of a procedure wherein the officers of the State envisage, plan and instigate the commission of a crime and proceed to punish it on the theory that a facile compliance with the officer's invitation confirms the accuracy of the suspicion of an unproved criminal practice,--for which the defendant is in reality punished.
The Federal courts dealing with prohibition laws, from which our own laws have been derived, as we have seen, hold that trickery, fraud, deception practiced upon one who entertained no prior criminal intent, is necessary to a complete defence;...
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