Peery v. State , 138 Tex. Crim. 155 ( 1939 )

Appellant complains in his motion because, as he alleges, we misapprehended his contention herein relative to the fact that this cause rests entirely on accomplice testimony, and that therefore the court should have granted his motion for an instructed verdict. He again complains that the doctrine upon which he requested his preemptory instruction was on account of his contention that the appellant was lured into this violation, and entrapped by the State's witnesses into treating Mrs. Alonso, and, therefore, because of such fact the law will not permit a conviction under such circumstances to stand. With the application of such a principle to these instant facts we can not agree. The gist of the offense is that appellant treated a human being for some disease or disorder without having filed certain documents in the office of the district clerk of Cameron County. The fact that an agent of the State Board of Medical Examiners requested this lady to go to where appellant lived and ask for treatment for bronchitis, and carried her there in his car, and furnished her with $2 to pay for same, in our judgment, would not constitute such to be an entrapment. It seems that appellant had a sign in front of his home, showing him to be a chiropractor; that Mrs. Alonso, who seemed to be suffering from bronchitis and knew nothing of this agent's motives, desired treatment therefor, and that she claimed to have been benefited thereby.

The word "Entrapment" has been defined legally as "the seduction or improper inducement to commit a crime, and not the testing by trap, trickiness or deceit of one suspected." U.S. v. Wray, 8 F.2d 429. Mr. Webster defines the word "entrap" as "to catch as in a trap by artifice." The word "entrapment" as used in a legal sense carries with it the presumption that the officer or agent manufactures the offense and then incites accused to commit the offense for the purpose of prosecution. Swallum v. U.S. 39 F.2d 390; also see a long list of cases of like import in 4th Series, Vol. 1, Words Phrases, p. 896.

In this cause we fail to see any species of entrapment in this agent furnishing the money to Mrs. Alonso, and telling her to go to appellant for treatment, and in her going to appellant and being treated for an ailment from which she was suffering.

The motion is overruled.