Spight v. State ( 1967 )

Arterburn, J.¹

The appellant was charged by affidavit with the crime of violating the 1935 Narcotic Act as amended.

Acts 1935, Ch. 280, § 2, p. 1351; 1961, Ch. 90, § 2, p. 169, being Burns’ Ind. Stat. Anno. § 10-3520 (Supp. 1956).

Count One of the affidavit charged the appellant with possession of marijuana and Count Two charged him with selling marijuana. Appellant was found guilty of Count One, namely, possession, and sentenced to the Indiana Reformatory for a period of not less than two nor more than ten years.

Appellant contends that he was a victim of entrapment. The evidence briefly shows that Ernest Haley was employed by the police to approach the appellant outside a grille on the night of May 28, 1963. He asked the appellant if he had any marijuana and the appellant answered “Yes,” whereupon Haley gave the appellant three one dollar bills. The appellant gave Haley a package which, upon later examination, was found to contain marijuana. Officer Kirby Crawley testified to seeing the exchange of the money for the marijuana, and the package, a brown manila envelope, was turned over to this officer, which he later identified on the witness- stand.

In Cosilito v. State (1925), 197 Ind. 709, 151 N. E. 721, this Court said:

“But because of testimony to the effect that one of the four men who bought the whisky (sic) from appellant was a deputy sheriff, he complains that this was a case of ‘entrapment.’ The evidence does not show that a public officer took any part whatever in planning or inducing appellant to commit the alleged crime of keeping a place where intoxicating liquors were sold and given away, that was resorted to for the purpose of drinking such liquors, and of keeping whisky (sic) there which he used in maintaining the place. The mere fact that a deputy sheriff offered to and did buy some of the liquor thus kept did not constitute such ‘entrapment’ as to transfer the responsibility for commission of the offense of maintaining a nuisance from appellant to the officer or the State of Indiana, as being the instigator and author of the crime. Rater v. State (1875), 49 Ind. 507, 510, 511; Clark v. State (1924), 195 Ind. 473, 475, 145 N. E. 566; Shacklett v. State (1926), 197 Ind. 323, 150 N. E. 758.”

And in Terrell v. State (1929), 89 Ind. App. 125, 166 N. E. 8, it was said:

“It is contended by appellant that this evidence shows that he was induced to commit the offense by the wrongful acts of the sheriff, and that his conviction was contrary to law. In other words, he claims the defense of entrapment. The exact question was before the Supreme Court of Colorado, in the case of Simmons v. People (1921), 70 Colo. 262, 199 Pac. 416. In that case, as in the case at bar, the prosecuting witness had been given money by the sheriff, with instructions to purchase intoxicating liquor from defendant, and there, as here, the defense of the accused was that he had been induced to commit the crime by entrapment. The court correctly held that there ‘was no such entrapment or instigation as to prevent the defendant’s act from being criminal.’ To the same effect, see Shacklett v. State (1926), 197 Ind. 323, 150 N. E. 758; Ramsey v. United States (1920), 268 Fed. 825; Reyff v. United States (1924), 2 Fed. (2d) 39; State v. See (1916), 177 Iowa 316, 158 N. W. 667; State v. Driscoll (1925), 119 Kans. 473, 239 Pac. 1105; Cooke v. Commonwealth (1923), 199 Ky. 111, 250 S. W. 802; People v. England (1923), 221 Mich. 607, 192 N. W. 612; DeGraff v. State (1909), 2 Okla. Crim. 519, 103 Pac. 538; Bauer v. Commonwealth (1923), 135 Va. 453, 114 S. E. 514. There is nothing whatever in the evidence to indicate that the sheriff resorted to the device to induce an innocent man to commit a crime, so as to bring the case within the entrapment rule. Appellant had the liquor in his possession which he willingly sold.”

The question here presented is too well settled to require further citation of the numerous cases decided by this Court on the point. We find no entrapment in the charge for which appellant was convicted.

We further point out that we do' not think that the issue of entrapment is even pertinent in this case, since the appellant was not found guilty of Count Two, the illegal selling of marijuana. He was found guilty only of possession of marijuana. It is apparent from the evidence that appellant possessed the marijuana before he was ever approached by Haley to make the purchase, and it cannot be said that in any sense did Haley induce or entrap the appellant to possess the marijuana.

Appellant further contends that he was not represented by competent counsel because his counsel “did not question the arrest” and because Ms counsel “failed to make timely objections throughout the trial to testimony provided by the state’s witnesses.” There is no attempt made by the appellant’s present counsel on appeal, who undoubtedly is competent, to set out specifically what objections should have been made and what evidence was improperly admitted. Since present counsel has had the benefit of a transcript of the evidence and has been unable to find or present such specifications, we are unable to review the same. Not every failure to object to an error in a trial is evidence of incompetency. Supreme Court Rule 2-17(e), (f) ; Schweigel v. State (1964), 245 Ind. 6, 195 N. E. 2d 848; Stice v. State (1950), 228 Ind. 144, 89 N. E. 2d 915.

Also there is a contention made that the evidence does not sustain the finding of guilty. The argument of the appellant is based more upon conjecture and supposition as to whether the jury should have believed the witnesses or not. We must examine the evidence most favorable to the State in determining its sufficiency to support the finding or verdict, and it is amply sustained. Baker v. State (1964), 245 Ind. 129, 195 N. E. 2d 91; Tait v. State (1963), 244 Ind. 35, 188 N. E. 2d 537.

Finally, it is contended that appellant’s constitutional rights were violated because of the lapse of time between the offense and the arrest. No authority is cited for this contention nor was it assigned in the motion for a new trial as a specification therein. We therefore are unable to give it any further consideration. Bays v. State (1959), 240 Ind. 37, 159 N. E. 2d 393; Baker v. State (1964), 245 Ind. 129, 195 N. E. 2d 91.

The judgment of the trial court is affirmed.

Jackson, J., dissents with opinion.

1 . This case was reassigned to the writer of this opinion on May 8, 1967.