Tischmak v. State , 133 Ga. App. 534 ( 1974 )

Webb, Judge,

concurring.

I concur in the majority opinion but, since the issues as to entrapment and the character witness are not specifically dealt with, and there is a dissent as to these issues, I feel compelled to state my views in support of the majority opinion.

1. The evidence presented by defendant as to entrapment is that the undercover agent requested him numerous times to sell her phencyclidine, he at first demurred to the requests, but finally acceded "just to get her off my back.” If there is any factual distinction between this situation and that presented in Garrett v. State, 133 Ga. App. 564 (3) (— SE2d —), it is a distinction without a difference. As we there said: "Under these circumstances the defense of entrapment is not raised since, under Criminal Code § 26-905, the accused must be induced to commit the act, which he otherwise would not have committed, 'by undue persuasion, incitement, or deceitful means.’ Because the phrase 'undue persuasion’ is used in context with 'incitement or deceitful means,’ it must mean something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to the disposition of his drugs. In Brooks v. State, 125 Ga. App. 867 (189 SE2d 448), defendant 'demurred somewhat’ before finally acceding to police officers’ requests and urgings to help locate and obtain drugs. While three judges dissented as to Division 4 of that opinion, all judges of this court concurred in Division 2, which stated simply: 'There was no entrapment. Allen v. State, 120 Ga. App. 533, 535 (171 SE2d 380).’ Here the case is even stronger, since the defendant was already vested with ownership and possession of the drugs and the necessary incidents of power of use and disposition. The record here simply fails to raise an issuable defense as to entrapment. Criminal Code § 26-905; Hill v. State, 225 Ga. 117 (166 SE2d 338); Sutton v. State, 59 Ga. App. 198 (200 SE 225); McKibben v. State, 115 Ga. App. 598, 599 (1) (155 SE2d 449) and cases cited; Allen v. State, 120 Ga. App. 533, 535 (4) (171 SE2d 380); Brooks v. State, 125 Ga. App. 867 (2) (189 SE2d 448); Brown v. State, 132 Ga. App. 399, 400 (1) (208 SE2d 183).”

It is thus my view that where one already is in knowing possession of contraband drugs, with the power to use and dispose of them, that individual’s dealing with the drugs cannot be construed as " 'the product of the creative activity’ of law enforcement officials.” Brown v. State, 132 Ga. App. 399, 400 (1), supra. The idea and intention of illegally dealing with the drugs, in one manner or another, has already been formed prior to the intervention of the law enforcement agency, and hence Criminal Code § 26-905, which requires the idea and intention to originate with the government officers, is inapplicable.

In any event, § 26-905 requires that the government officer with whom the idea and intention originated must also use "undue persuasion, incitement, or deceitful means” to induce the crime; and if repeated requests or nagging, to which defendant first demurs and then accedes, is "undue persuasion,” then Brooks v. State, 125 Ga. App. 867 (2), supra, and similar cases, must be overruled.

The evidence failed to raise an issuable defense of entrapment, and the trial court did not err in failing to charge defendant’s requests on this subject.

2. Since the defendant admitted committing the offense, the defense of entrapment utterly failed, and the evidence demanded the guilty verdict, the error with respect to the character witness, as well as other alleged trial errors, are rendered harmless. Garrett v. State, 133 Ga. App. 564 (4), supra, and cases cited.