Harris v. State , 139 Ga. App. 675 ( 1976 )

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139 Ga. App. 675 (1976) 229 S.E.2d 148
HARRIS
v.
THE STATE.
52682.
Court of Appeals of Georgia.
Argued September 22, 1976. Decided September 28, 1976.
Kelley, Allen & Kelly, Roy Benton Allen, Jr., for appellant.

Thomas H. Pittman, Solicitor, for appellee.

CLARK, Judge.

This appeal is from a misdemeanor conviction on a charge of selling alcoholic liquor in a dry county. At his trial defendant relied upon evidence establishing the affirmative defense of entrapment.

1. Enumerations of error 1(b), 3, 4 and 5 are without merit. See State v. Moore, 237 Ga. 269; Thornton v. State, 139 Ga. App. 483 (5); Webb v. State, 136 Ga. App. 90 (4) (220 SE2d 27).

2. Examination of the trial transcript discloses that the state failed to present any probative evidence in rebuttal of this entrapment defense. "In Harpe v. State, 134 Ga. App. 493 (214 SE2d 738), we held that where the evidence of the defendant raises the defense of entrapment and is uncontested or not rebutted by the state, a conviction cannot be upheld as the State has the duty to come forward with contrary proof." Hall v. State, *676 136 Ga. App. 622, 623 (222 SE2d 140). See Mills v. State, 137 Ga. App. 305 (1) (223 SE2d 498).

As in Hall, supra, the prosecution produced evidence seeking to attack the defendant's credibility. This is not sufficient to rebut the entrapment defense. If, as in Hall, the state could have disproved some of defendant's testimony by producing the informant, then it should have done so. See Harpe v. State, 134 Ga. App. 493, 495 (2) (214 SE2d 738).

There being no rebuttal evidence of any of the elements of defendant's prima facie defense of entrapment, then it must stand established as a matter of law.

3. As this ruling on enumerations of error 1 (a) and 2 is predicated upon the verdict being contrary to the evidence, we must reverse the judgment of conviction and direct that a judgment of acquittal be entered in its place. See Marchman v. State, 234 Ga. 40 (215 SE2d 467).

Judgment reversed with direction that a judgment of acquittal be entered. Bell, C. J., and Stolz, J., concur.