Opinion
No. 24920
Decided September 25, 1969.
Defendant was convicted of possession of cannibis sativa L. and appealed.
Ruling Affirmed
1. DRUGS AND DRUGGISTS — Possession of Cannabis Sativa L — Entrapment — Negative. In prosecution for possession of cannabis sativa L., contention of defendant — that he was entrapped into committing the offense and was therefore entitled to acquittal of the charge — is without merit.
2. ENTRAPMENT — Common Law — Unknown. The defense of entrapment was unknown to the common law.
3. Colorado — Defense. In Colorado, entrapment has been regarded as a defense at least since 1893.
4. Seduction — Government Agent — Defense. Seduction by a government agent of an innocent person into doing an unlawful act not contemplated by him affords a complete defense to one charged with a crime.
5. Government Agent — Afford — Opportunity — Intent — Crime — Proper — Defense — Unavailable. Government agent's affording an opportunity to one who has intent and design to commit a criminal offense is a perfectly proper tool in the arsenal of law enforcement agents, and defense of entrapment is not available under such circumstances.
6. Defendant — Approached — Bar — Marijuana — Individual — Exchange — Matchbox — Doctrine — Inapplicable. Where record discloses that defendant, while drinking in a bar, was approached by an individual and asked if he could procure some marijuana, and defendant thereupon advised such individual to come to his house the next morning to pick up some "stuff," and such individual, who had approached defendant on two other occasions, was met at his house by a deputy sheriff who, after searching such individual, placed five dollar bill in his pocket, and individual then left his house and went to home of defendant, where money was exchanged for small matchbox containing marijuana, held, under these circumstances, record is devoid of any evidence which would lead to application of doctrine of entrapment as a matter of law.
Appeal from the District Court of Lake County, Honorable Harold A. Grant, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Patricia W. Robb, Special Assistant, for plaintiff-appellee.
Cosgriff, Dunn and French, Hugh R. Warder, Robert H.S. French, for defendant-appellant.
[1] The appellant, James Simmons, was convicted of possession of cannabis sativa L., in violation of C.R.S. 1963, 48-5-2. His sole contention here is that the evidence shows that he was entrapped into committing the offense and is therefore entitled to acquittal of the charge. Since we find the contention to be without merit we affirm.
The record discloses the following relevant facts leading to the appellant's conviction: On the evening of May 10, 1969, appellant, while drinking in a Leadville bar, was approached by one Larry Kasten and asked if he (appellant) could procure some marijuana. Appellant thereupon advised Kasten to come to the appellant's house the next morning to pick up some "stuff." There was conflicting testimony as to when and on how many other occasions Kasten had solicited appellant for marijuana, but Kasten admitted to approaching appellant on two other occasions, all within one month of May 10, 1969. On the morning of May 11, 1969, Kasten was met at his house by Donald Hansen, a deputy sheriff of Lake County. After searching Kasten, Hansen placed a five dollar bill in Kasten's pocket. Kasten left his house and went to the home of appellant, where the money was exchanged for a small matchbox containing marijuana. Kasten returned to his home and gave the matchbox to Hansen.
[2-4] The defense of entrapment was unknown to the common law and is still not available to defendants in many jurisdictions, see Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1098-1115; Martinez v. United States, 373 F.2d 810, (10th Cir.). However, in Colorado entrapment has been regarded as a defense since at least 1893. As the law on this point has developed, the courts have drawn a strong distinction between (1) the seduction by a government agent of an innocent person into doing an unlawful act not contemplated by him, and (2) government agent affording an opportunity to one who has the intent and design to commit a criminal offense to do so. People v. Patterson, 175 Colo. 19, 485 P.2d 494; Mora v. People, 172 Colo. 261, 472 P.2d 142; Yeager v. People, 170 Colo. 405, 462 P.2d 487; Gonzales v. People, 168 Colo. 545, 452 P.2d 46; Reigan v. People, 120 Colo. 472, 210 P.2d 991; Simmons v. People, 70 Colo. 262, 199 P. 416. The first situation affords a complete defense to one charged with a crime under those circumstances. The second is a perfectly proper tool in the arsenal of law enforcement agents.
[5] The evidence here shows no circumstances which would lead to the application of the doctrine of entrapment as a matter of law. There were no circumstances present in the instant case which in other cases have led courts to hold the defense of entrapment good, such as importunate solicitations accompanied by an attempt to arouse the sympathies of the defendant to an urgent need of the importunee. Nor do we find anything in the record which indicates anything other than that the government agent gave the appellant the opportunity to commit a crime, an opportunity which he took advantage of to his ultimate detriment.
The judgment is affirmed.
MR. JUSTICE HODGES, MR. JUSTICES GROVES and MR. JUSTICE ERICKSON concur.