Ivy v. State , 161 Tex. Crim. 371 ( 1955 )

DAVIDSON, Judge.

Appellant was convicted for the unlawful sale of heroin, a narcotic drug, and his punishment assessed at two years in the penitentiary.

Richards, the person to whom it was alleged that appellant sold the narcotic drug, testified that appellant sold him two capsules of heroin, for which he paid him $14; that the sale took place in a trailer house; and that Robert Bayly and an unidentified third person were present in the trailer house.

Richards was a narcotics agent for the Texas Department of Public Safety and at the time was working as an undercover agent.

Bayly did not testify as a witness in the case.

Appellant’s defense is that the narcotics agent was guilty of entrapping him into violating the law by selling the drug to Richards. To sustain that defense he relies upon his own testimony, wherein he said that he had been “running around” with Bayly, whom he knew as a narcotics “pusher”; that Bayly gave him narcotics from time to time; that at the suggestion of Bayly he put $25 into a joint fund with which Bayly purchased the narcotics a part of which was sold to Officer Richards in, the trailer house; and that the sale was made to Richards upon Bayly’s suggestion and his representation that Richards was his friend, was sick, and wanted to buy some dope which he, himself, could not sell because he (Richards) would expect him to give it to him as payment on a debt of $35. Appellant further testified that “he (Bayly) told me if it was all right how’s about you letting him have the dope and I told him all right.”

Appellant admitted that he sold the narcotics to Richards for $14. He testified, however, that he made the sale only at Bayly’s instigation and insistence, but for which he would not have done so or had anything to do with the transaction.

Richards testified that Bayly was working under cover as an informer in assisting him ferret out violations of the narcotics law under his direction and supervision, but that he (Bayly) was not a narcotics agent; that he (Richards) was always nearby and saw to it that whatever narcotics purchase Bayly made with the money he furnished him for that purpose was brought directly to him; that Bayly’s duties were to assist him “in setting” him “in to dealers and pushers who he knew was pushing dope”; that on one occasion he had Bayly arrange for a purchase and notify him so he could make the purchase, but usually he would pick Bayly up and look for people he knew were selling narcotics and try to buy some from anybody they “saw with dope that wanted to sell it”; that he was not acquainted with appellant and had no reason to believe that he would be at Bayly’s place; that Bayly was himself an addict and missed the police dragnet in which many were arrested and held for investigation or charged with vagrancy.

It is true that Richards testified that Bayly helped him make a case against appellant and was acting as his agent in connection with making narcotics cases, but he also testified as to the method used generally. As to the present case, he testified as follows:

“The only way he (Bayly) would be implicated is he owned the trailer house at the time I approached him in this defendant’s hearing and asked him if he had any stuff. He didn’t answer. This man here answered and asked me how much I wanted.”

To this question Richards replied:“.... two caps.”

Under such state of facts, appellant requested the trial court to charge upon what he terms the law of entrapment— that is, that if the jury believed or entertained a reasonable doubt that the state’s witnesses, Richards and Bayly, either or both, initiated the commission of the offense or induced bfm to commit the offense, they should acquit. In other words, appellant insisted that the jury should be instructed to acquit him if the officer and those working with him for the purpose of instituting a criminal prosecution initiated and induced him to commit the crime here shown — and this, notwithstanding the fact that appellant, by his own testimony, admitted the commission of the unlawful act.

Assuming, without deciding, that entrapment is a defense to crime in this state, and that appellant was entitled to an acquittal if the narcotics officer or agents induced him to commit a crime not contemplated by him for the purpose. of instituting criminal prosecution against him, is such defense raised by the evidence?

The conclusion is expressed that the testimony of the officer is uncontradicted in so far as it shows that he was not a party to any scheme to secure the conviction of innocent persons by inducing them to possess or sell narcotics in order that he might prosecute them therefor.

That Bayly may have made the misrepresentations and suggestion testified to by appellant as having' been made at the time of the purchase would not, alone, show entrapment even though the officer had been a party thereto.

That Bayly was a party to the offense of possession1 and had arranged for and made the purchase of the narcotics without the participation, direction, or suggestion of the officer would constitute no defense, as appellant had knowingly and willingly participated in and made the sale.

Appellant knew and was of necessity charged with knowing that he was violating the law when he sold the narcotics. No one forced him to make the sale; he did it of his own free will.

What was said in Ridinger v. State, 146 Texas Cr. R. 286, 174 S.W. 2d 319, appears, as to the conclusion expressed, to be in point:

“It would be rather difficult to conceive of a state of facts whereby a party was, by entrapment, induced to make a sale of liquor, where he does so by his own acts and with full knowledge of what he is doing.”

Accordingly, the conclusion is reached that appellant was not entitled to the charge requested and that the facts support the jury’s verdict.

The judgment is affirmed.