Hill v. State , 95 Nev. 327 ( 1979 )

Thompson, J.,

dissenting:

I dissent.

An accurate instruction upon the basic elements of the offense charged is essential, and the failure to so instruct is reversible error. Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212 (1970); Harvey v. State, 78 Nev. 417, 421, 375 P.2d 225 (1962). The same principle applies with equal force to an affirmative defense which, if established, would mandate an acquittal.

In my opinion the instruction, to which objection was interposed, is incorrect since it advised the jury that there is no entrapment if the officers “aided or encouraged” the commission of a crime. The Nevada cases, Moore v. State, 93 Nev. 645, 646, 572 P.2d 216 (1977); State v. Busscher, 81 Nev. 587, 590, 407 P.2d 715 (1965); Wyatt v. State, 77 Nev. 490, 494, 367 P.2d 104 (1961); In re Wright, 68 Nev. 324, 329, 232 P.2d 398 (1951), although not concerned with a jury instruction, each recognizes the distinction between furnishing an opportunity to commit a crime and urging or persuading one to do so. The criminal intent must originate in the mind of the defendant without urging or persuasion by the undercover agent. State v. Busscher, supra. If such urging or persuasion is established, the affirmative defense of entrapment likewise is established. The apparent flaw in the challenged instruction is its declaration that there is no entrapment if the officers aided or encouraged the commission of a crime.

The California Supreme Court recently has restated the proper test of entrapment in order to retain the deterrent effect of the entrapment defense on impermissible police conduct. People v. Barraza, 591 P.2d 947 (Cal. 1979). This, I think, is the direction our court should take. Surely, it is not sound policy to allow government agents to aid or encourage one to commit a crime.