State v. Wallace , 246 N.C. 445 ( 1957 )

98 S.E.2d 473 (1957) 246 N.C. 445

STATE
v.
Leslie Mae WALLACE, alias Mae West.

No. 724.

Supreme Court of North Carolina.

June 7, 1957.

George B. Patton, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

Britt, Campbell & Britt, Lumberton, for defendant, appellant.

HIGGINS, Justice.

The court in its charge set forth in detail the elements necessary to constitute entrapment, stated the separate contentions of the State and the defendant as to whether the evidence made out a case of entrapment. The court did not make its own application of the law to the facts as the jury might find them and did not instruct the jury as to its permissible verdicts according to its actual findings. The failure of the court to apply the law to the facts, as the jury might find them, is not the subject of an exceptive assignment. We mention the failure here only to emphasize the probable prejudicial effect of that portion of the court's charge to which the defendant did object.

The defendant included in her exception and assignment of error No. 4 that portion of the charge defining entrapment. The exception, we concede, included more of the charge than is required to point up the error of which the defendant complains. However, the Attorney General does not raise the objection that the charge was broadside. To pinpoint the exception we need only quote the following part of the charge: "If officers of the law induce an innocent person to initiate a crime which he would not otherwise commit, this would constitute entrapment and may constitute a defense of the crime charged."

The law of entrapment is that it not only may, but it does constitute a defense. The charge as given left it optional with the jury whether to apply the law of entrapment as a defense. The court should have, but did not, charge that entrapment is a defense; and upon a finding that the defendant had been entrapped into the commission of the offense charged, it would be the duty of the jury to return a verdict of not guilty. In this case the State's only witness to the offense was an officer. The law of entrapment is fully discussed in the following cases: State v. Jackson, 243 N.C. 216, 90 S.E.2d 507; State v. Burnette, 242 N.C. 164, 87 S.E.2d 191; State v. Nelson, 232 N.C. 602, 61 S.E.2d 626; State v. Love and West, 229 N.C. 99, 47 S.E.2d 712.

For the error indicated, it is ordered that there be a

New trial.