State v. Marquardt

• Decision Date: 20 May 1952
• Citation: 139 Conn. 1,89 A.2d 219,31 A.L.R.2d 1206
• Court: Connecticut Supreme Court
• Parties: , 31 A.L.R.2d 1206 STATE v. MARQUARDT. Supreme Court of Errors of Connecticut

Page 219

89 A.2d 219

139 Conn. 1, 31 A.L.R.2d 1206

STATE v. MARQUARDT.

Supreme Court of Errors of Connecticut.

May 20, 1952.

Rocco R. P. Perna, Greenwich, for appellant (defendant).

Lorin W. Willis, State's Atty., Bridgeport, with whom, on the brief, was Otto J. Saur, Asst. State's Atty., Bridgeport, for appellee (state).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN JJ.

BROWN, Chief Justice.

The defendant, after a trial to the jury, was convicted of making, recording and registering bets on horse races contrary to § 8672 of the General Statutes. He has appealed on the ground that the court erred in refusing to charge upon the defense of entrapment as requested. Whether the court should have submitted this issue to the jury is the sole question for determination.

The state's claims of proof may be thus summarized: On November 30, 1950, Smith, a state police officer who was not known as such in Greenwich, in civilian dress and assuming the name of Spellman, obtained a room at the Pickwick Arms, a hotel in that town. The defendant, who was employed there as a bellboy, knew that Smith was a guest but not that he was a police officer. On December 2, Smith asked the defendant if he would take a bet on a horse race. The defendant agreed and Smith gave him $10 on a specified horse which was entered in the sixth race at Tropical Park in Florida on that date. On December 8, Smith placed a similar bet for $5 and the defendant stated that he would take it to someone else to handle for him. He took it across the street to James Sirbuono. On December 14, Smith placed another bet with the defendant, who immediately took it across the street and gave it to John Bennett. On December 15, the defendant accepted a similar bet from Smith for $10. After the first bet, the defendant went to Smith's room for the other bets so that the hotel management might not become aware of his activities. Smith was at all times acting under instructions of his superiors in the state police department in an effort to discover who was participating in the horse race betting in Greenwich and to obtain evidence against them.

These were the defendant's material claims: Prior to November 30, 1950, he was a doorman at the hotel and a complete stranger to Smith. On that day, Smith who had received money from his superiors to bet on horse races had no knowledge that the defendant took bets on horses. Smith initiated a discussion with the defendant about horse racing and inquired who would take a bet. The defendant replied that he did not take bets. On December 1, Smith again approached him and talked about taking bets on horse races. On December 2, he again approached the defendant and, persisting, coaxed and incited the defendant to accept $10 together with a slip of paper on which Smith had written the name of a horse, the race, the track and the time and signed it Spellman, and instructed the defendant to go out and place the money. For this service Smith gave the defendant a $1 tip. On December 8, Smith called the defendant to his room and again initiated discussion about taking bets on horse races At this time the defendant tendered back to him the money and paper slip of December 2, but Smith refused to accept them. Instead, Smith coaxed, incited and aroused the defendant to hold the $10 with another paper slip and to find someone with whom to place the wager. He again paid the defendant a tip of $1. On December 14, Smith again approached the defendant and did the same thing upon another bet and paid him another tip of $1. This was repeated by Smith on December 15, and he gave the defendant another tip of $1. Smith did these things to obtain evidence against any one active in accepting bets on horse races. The defendant never conceived the idea of taking bets and never solicited any money for bets on horse racing. The defendant turned over to a newsboy whatever money he received from Smith to be placed as bets on horse racing.

The defendant requested the court to charge: (1) Entrapment may be defined as an inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting criminal prosecution against him. (2) Where an officer of the law induces a defendant to commit a criminal act not contemplated by him, a conviction is contrary to public policy. (3) when an officer induces a person who has no intention of committing crime to violate the law, the courts will not lend their aid in the punishment of persons thus lured into committing the crime. It is unnecessary to recite the final request, designed to relate these principles to the instant case. The court refused these requests.

Entrapment has been well defined as 'the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal prosecution against him.' State v. Jarvis, 105 W.Va. 499, 500, 143 S.E. 235; Sorrells v. United States, 287 U.S. 435, 454, 53 S.Ct. 210, 77 L.Ed. 413; United States v. Wray, 5 Cir., 8 F.2d 429, 430. In certain crimes, consent to the criminal act by the person injured eliminates an essential element and therefore constitutes a good defense. Except in 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 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. On the other hand, 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 general character except for the urging of the agent, no conviction may be had. 15 Am.Jur. 24, 25; notes, 18 A.L.R. 149, 66 A.L.R. 482, 86 A.L.R. 265; Butts v. United States, 8 Cir., 273 F. 35, 38; Newman v. United States, 4 Cir., 299 F. 128, 131; Sorrells v. United States, supra, 287 U.S. 444, 53 S.Ct. 210, 77 L.Ed. 413; People v. Finkelstin, 98 Cal.App.2d 545, 553, 220 P.2d 934; Hoy v. State, 53 Ariz. 440, 453, 90 P.2d 623; State v. Decker, 321 Mo. 1163, 1168, 14 S.W.2d 617; State v. Jarvis, supra; Falden v. Commonwealth, 167 Va. 549, 555, 189 S.E. 329. Among the suggested bases for the application of this principle is estoppel of the government by the acts of its officers on the ground of public policy, the courts stating that 'they will not permit their process to be used in aid of a scheme for the actual creation of a crime by those whose duty is to deter its commission.' Sorrells v. United States, supra, 287 U.S. at page 454, 53 S.Ct. at page 217; O'Brien v. United States, 7 Cir., 51 F.2d 674, 679. This court has never ruled upon entrapment as a defense in a criminal case. We did hold in a civil proceeding for the revocation of a dentist's license that the facts were insufficient to sustain such a defense. Jones v. Dental Commission, 109 Conn. 73, 76, 145 A. 570. In an earlier case, in denying a decree of divorce for adultery on the ground that the plaintiff's agent had procured the defendant's misconduct, we applied the principle which...