State v. Taylor, 49910

• Decision Date: 10 February 1964
• Docket Number: No. 1,No. 49910,49910,1
• Citation: State v. Taylor, 375 S.W.2d 58 (Mo. 1964)
• Parties: STATE of Missouri, Respondent, v. Mothan TAYLOR, Jr., Appellant
• Court: Missouri Supreme Court

Page 58

375 S.W.2d 58

STATE of Missouri, Respondent, v. Mothan TAYLOR, Jr., Appellant.

No. 49910.

Supreme Court of Missouri, Division No. 1.

Feb. 10, 1964.

Hugh J. White, St. Louis, for appellant.

Thomas F. Eagleton, Atty. Gen., Jefferson City, James S. Corcoran, Sp. Asst. Atty. Gen., St. Louis, for respondent.

HOUSER, Commissioner.

Nathan Taylor, Jr., was convicted by a jury of unlawfully selling a narcotic drug, in violation of Sec. 195.020, V.A.M.S. The jury assessed a penalty of eight years' imprisonment in the penitentiary. On this appeal defendant relies upon four points, one of which is that the court erred in refusing to give an instruction offered by defendant, submitting the defense of entrapment.

The refused instruction directed a verdict for defendant upon a finding that the federal agent to whom the sale is alleged to have been made lured, urged or encouraged defendant to commit the offense charged in order to prosecute him for it when defendant would not have committed an offense of that general character except for the urging of the agent; that the criminal intent or willing disposition to commit the crime did not originate in the mind of the defendant, but in the mind of the federal agent.

The state conceded in argument that the offered instruction was correct in form and substance as a statement of the law of entrapment, so we do not pass upon that question. The state sought to uphold its refusal on the ground that there was not a sufficient evidentiary basis therefor; that there was no evidence that the agent implanted a criminal intent in the mind of defendant or induced or lured him to commit the offense.

In reviewing the evidence on this issue we confine ourselves to the testimony favorable to defendant. In important particulars his testimony was contradicted by that of the narcotics agent, but it was the exclusive function of the jury to pass upon the credibility of the witnesses and determine which spoke the truth. 'Ordinarily the defense of entrapment raises a question which should be submitted to the jury under proper instructions, this being particularly true where the testimony of accused, at face value, supports the defense.' Anno: Entrapment--Narcotics Offense, 33 A.L.R.2d 883, loc. cit. 902. The refusal to instruct on the subject was the equivalent of a finding that as a matter of law there was no entrapment. If the evidence favorable to defendant supported the instruction offered it was a question for the jury and not for the court alone, 'regardless of what either the lower court or this court may think about appellant's guilt.' Hamilton v. United States, 5 Cir., 221 F.2d 611, 613.

The state's principal witness, James Snokhaus, a federal narcotics agent, worked in an undercover capacity among narcotic violators and suspects in St. Louis and vicinity for several months, trying to make purchases of narcotics. He assumed identity with narcotic traffickers, and associated freely with them, with the object of arresting violators. Eventually he 'rounded up' and caused the arrest of thirty suspects, including this defendant. Snokhaus worked with an informer named Jimmy Lewis, an associate of people engaged in this illicit traffic. Lewis was employed at a drug store. At the time he was employed to work with Snokhaus, Lewis had been arrested by the city police department and was under investigation in connection with a theft of narcotics. Snokhaus posed as a close friend of Lewis, and held himself out to be a pharmacist, so as to make his association with Lewis appear natural and account for his desire to purchase narcotics in considerable quantities. Snokhaus first met defendant on March 24, 1962. The sale which is the subject of this prosecution is alleged to have occurred on July 7, 1962. The foregoing facts were testified to by Snokhaus. The following facts could have been found, partly from the testimony of Snokhaus and partly from that of defendant. Prior to July 7, 1962 defendant had never handled, sold, used or trafficked in narcotics. Although defendant had been convicted of forgery of government checks in 1955 there is no evidence that he had been in any trouble thereafter, or that he had ever been convicted of any violation of the narcotics laws, or that he was reputed to be a trafficker in narcotics, or an addict. Snokhaus conceded that neither Lewis nor any other person had told him of ever having purchased narcotics from defendant. Snokhaus did not know of anybody (other than himself) who had bought narcotics from defendant. Between March 24 and July 7 Snokhaus, pretending to be in the market for marijuana, initiated conversations with and visited defendant on five different occasions. Defendant did not know that Snokhaus was a federal narcotics agent. On each of these occasions Snokhaus would tell defendant that he would like to purchase, or 'make a buy,' of marijauna, and ask defendant if he could 'get him some' or suggest some contact from whom Snokhaus could get it. This suggestion was always accompanied by an offer by Snokhaus to pay defendant $5 for each can of marijuana bought through defendant. On one of these visits to defendant's home Snokhaus, in an effort to fraternize with defendant and secure his confidence, provided beer and drank beer with him. On each of these contacts defendant denied that he had any narcotics and denied that he knew anyone who could supply Snokhaus with narcotics. Defendant did not at any time tell Snokhaus that he handled narcotics. At no time prior to July 7 did he recommend anyone who might supply them or make any effort to go out and find a supplier. None of these meetings with Snokhaus was initiated by defendant. Nor did defendant make any effort to get in touch with Snokhaus' confederate, Jimmy Lewis. It was always Snokhaus who sought out, found and contacted defendant. On July 7 Snokhaus made another trip to defendant's house, accompanied by Lewis. On this occasion he fabricated the claim that he wanted to buy marijuana for a party he was giving for some people; said he was 'supposed to get it for them,' and asked defendnat if he could 'get it for him, or get somebody to sell it to him.' Snokhaus said he wanted a couple of cans and repeated his persistent offer that for each can defendant would sell him he would give defendant $5. Defendant was not working, and the plain inference from his testimony is that the prospect of making $10 finally caused him to go out that night with Snokhaus and Lewis, in the agent's private automobile, in search of a source of narcotics. Defendant 'figured' he might be able to ask someone who would know about it; hoped he could find somebody who could lead him to a supplier. He inquired at a hotel and at the 'Music Box.' He learned that marijuana was available in Kinloch, so Snokhaus, Lewis and defendant proceeded to Kinloch, in the agent's automobile. There defendant encountered one Burl, the only person in Kinloch defendant knew. He did not know that Burl had access to marijuana, but he asked Burl where he could get some. Burl, not having any, after making a phone call, told defendant to go to a certain street intersection in St. Louis where he would meet a woman named Darlene, who would supply the narcotic. At the appointed time and place Darlene appeared, and eventually she produced two cans of marijuana, which she transferred to Snokhaus at a tavern, for $40. Snokhaus then paid defendant $10. After July 7, 1962 Snokhaus tried to purchase more marijuana from or through defendant, but defendant told Snokhaus he did not know 'where any was.' Defendant specifically denied that he had ever worked with Burl or shared the purchase price of narcotics with Burl or anyone else, prior to July 7, 1962.

From the evidence of entrapment favorable to defendant the jury could have found that the narcotics agent did not have reasonable cause to suspect that defendant was an actual or potential violator of the narcotics laws; that defendant did not have a predisposition or criminal intent to violate these laws; that Snokhaus' actions were not those of an enforcement officer merely offering to one who was willing and waiting and already engaged in the illicit traffic, an opportunity to commit an offense. The jury had a right to find that the government agent initiated the idea of purchasing the narcotics; that the crime was the 'product of the creative activity' of Snokhaus, that the intention to commit this crime did not originate in the mind of defendant but was planted there by the agent, who, through misrepresentation and deceit, imposition, persistent and repeated solicitation, inducement and promises of money consideration to one in reduced financial circumstances, finally engineered defendant's participation in criminal activity which but for the pressures applied would never have been undertaken by him.

Lutfy v. United States, 9 Cir., 198 F.2d 760, 33 A.L.R.2d 879, is a case directly in point. There defendant testified that he had never engaged in the narcotic traffic; never had narcotics in his possession or under his control and had no knowledge of others having narcotics until a narcotics bureau employee whose connection with the government was unknown to defendant suggested that he call a certain person, through whom a sale was effected. The government employee visited in the home of the accused, drank with him, posed as a friend, and over a long period of time importuned him to procure narcotics for a fictitious person; introduced accused to other persons who, unknown to accused, were narcotic agents, who also pleaded with him to procure the narcotics for the fictitious person, representing that she badly needed them. Finally, after several beers, defendant succumbed to their entreaties, and armed with money they supplied, bought and transferred narcotics to them. The 9th Circuit Court of Appeals held that on such a showing the defendant was entitled to have the jury properly...