State v. Williams
Decision Date | 22 January 1970 |
Docket Number | No. 10676,10676 |
Parties | STATE of South Dakota, Plaintiff and Respondent, v. Porter WILLIAMS, Defendant and Appellant. |
Court | South Dakota Supreme Court |
David V. Vrooman, Sioux Falls, for defendant and appellant.
Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for plaintiff and respondent.
Defendant Porter Williams was found guilty by a jury on two counts of an information charging violation of Section 2, Chapter 94, Laws 1968, which makes it 'unlawful for any person to manufacture, possess, have under his control, sell * * * or compound any narcotic drug or any preparation containing a narcotic drug' except as therein authorized. Defendant was charged with unlawful possession of marihuana in count one and with felonious selling in count two. He was sentenced for unlawful possession to a term of five years in the State Penitentiary and ten years for illegal sale.
We first consider the contention that the trial court erred in denying defendant's motion for judgment of acquittal on the ground that the evidence as a matter of law established the defense of entrapment.
On June 5, 1968, William Nye, a special agent for the state, investigating narcotic violations, entered the Mocamba Club in Sioux Falls where he contacted defendant Williams. At that time Nye purchased from Williams seven bags or lids of marihuana described as aculpulco gold. He testified:
On July 3, 1968, defendant informed Nye that he had obtained a quantity of marihuana and they agreed to meet the following evening at the Mocamba Club. Nye, accompanied by another state agent whom he introduced to defendant as his money man, met at the place designated with defendant and one Wendell Shaw. They sat in a booth and the state agents exhibited to defendant and Shaw money in the amount of $1650. Nye and defendant then left the Mocamba Club and went to a garage in the city and picked up a bag containing material which was later examined by an assistant state chemist who determined that the material contained marihuana. After payment of the agreed price to and delivery of the marihuana by defendant to the state agents at a parking lot near the Mocamba Club, defendant was placed under arrest.
Entrapment has been defined as the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal proceedings against him. 21 Am.Jur.2d, Criminal Law, § 143. This court has not sustained entrapment as a defense in a criminal action, but has held that the facts in an action presented no question of entrapment. State v. Johnson, 49 S.D. 414, 207 N.W. 216; State v. Plucker, 71 S.D. 78, 21 N.W.2d 280; City of Sioux Falls v. Famestad, 71 S.D. 98, 21 N.W.2d 693.
In the much quoted case of Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, the court held that the question of entrapment should have been submitted to the jury. The court speaking through Mr. Chief Justice Hughes said:
The majority opinion in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, stated that 'a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal'. The standards outlined in the Sorrells case, supra, by which such determination is made are specifically reaffirmed.
Defendant was permitted to plead not guilty and thus deny that he committed the crime charged and to raise the defense of entrapment. Entrapment is a positive defense, the invocation of which necessarily assumes that the act charged was committed. 22 C.J.S. Criminal Law § 45(1). The record here does not present for determination the question whether the defense of entrapment is available to a defendant who denies that he committed the offense charged. See Annot., 61 A.L.R.2d 677.
The question of entrapment where the evidence is in conflict as to the origin of the intent to commit the offense charged is for the jury. The question of entrapment in the instant case was, at most, one of fact. Entrapment as a matter of law is not established where there is substantial evidence from which it may be inferred that the criminal intent to commit the offense charged originated in the mind of the accused. 22 C.J.S. Criminal Law § 45(2). The court carefully instructed the jury with reference to entrapment and left to the jury the determination of the question. An exception...
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