State v. Whisnant , 36 N.C. App. 252 ( 1978 )

243 S.E.2d 395 (1978)

STATE of North Carolina
v.
Cathy Buff WHISNANT.

No. 7725SC977.

Court of Appeals of North Carolina.

May 2, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.

Sigmon & Sigmon by W. Gene Sigmon, Lefler, Gordon & Waddell by Lewis E. Waddell, Jr., Newton, for defendant-appellant.

CLARK, Judge.

The defendant contends the trial court erred in charging the jury that the defense of entrapment is not available to one who has been induced by some person other than a law enforcement officer.

North Carolina follows the majority rule that entrapment is a defense only when the entrapper is an officer or agent of the government. State v. Jackson, 243 N.C. 216, 90 S.E.2d 507 (1955); State v. Yost, 9 N.C.App. 671, 177 S.E.2d 320 (1970), cert. den. Yost v. Ross, 181 S.E.2d 600 (1971); Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958); Smith v. State, 258 Ind. 415, 281 N.E.2d 803 (1972).

It appears from the decisions in this State that the main purpose of the entrapment defense is to regulate government activity in investigating crimes, crimes that often require no form of specific intent. State v. Love, 229 N.C. 99, 47 S.E.2d 712 (1948).

The State's evidence tended to show that defendant in December initiated the telephone call to Ms. Reynolds and sought buyers for drugs. But on 28 January 1977, Ms. Reynolds called defendant while Agent Prilliman was present, and Prilliman gave her a list of drugs he wanted her to ask defendant to get for him.

On the other hand, defendant's evidence tended to show that she did not call Ms. Reynolds in December, but on the day in question Ms. Reynolds called and said she had a friend who needed drugs for pain. Defendant told Ms. Reynolds she had Talwin and Phenaphen of her own. Then Ms. Reynolds and Agent Prilliman came to defendant's apartment. This evidence tends to show some inducement of defendant by Ms. Reynolds as the agent of Prilliman to commit the crime.

Under these circumstances it was the duty of the trial judge under G.S. 1-180 to apply the law to the evidence by instructing the jury in substance that if Ms. Reynolds was acting as an agent for S.B.I. Agent Prilliman and she as such agent induced the defendant to commit the crime charged, the S.B.I. Agent would be responsible for her actions and the defense of entrapment would be available to defendant. Sherman v. United States, supra. The failure to do so was prejudicial error.

We do not treat the other assignments of error since they may not occur on retrial.

The judgment is reversed and we order a

New trial.

BRITT and ERWIN, JJ., concur.