*1 288 determining considering legality of his
essential 508, 1008a, Secs, 10, supra; arrest. Art. Texas Jur. 3 and 19 19; parter Anderson, Rep. 291, Ex 120 Sec. 135 Texas Cr. 259; McMillan, parte 2d Ex Texas S.W. 2d 384. S.W. should requested instruments
When said granted a have been furnished to her or she should have been reasonable time to obtain them. deny- requires This trial of the court reversal order
ing prayed parte Hooper, the relief for. Ex 166 Texas Cr. 189, 312 S.W. 673. judgment and the is remanded. reversed cause
Opinion approved by the Court.
Jewel Alexander v. State. 30,537. March 1959. No. Rehearing 1959. Motion for Overruled June Rehearing 1959. June Second Motion for Overruled DAVIDSON, Judge, dissented. appellant. Dallas, Tessmer,
Charles William Ellis, Attorney, Dustin Ben Henry Wade, District Criminal Bowie, Jr., Assistants Chamberlain, D. Jim Fillimore, A. Jerome Attorney, Douglas, Dallas, Leon Attorney, State’s District Austin, for the State.
289- Judge. WOODLEY, *2 marijuana; punish- the is the unlawful sale of
The offense ment, years. ten alleged Dan made to
The indictment the sale to have been testified, Stringfellow, D. Detective of Evans. He as did L. Bureau, Special Police of the Service Dallas
Narcotic Section Depart- Department, a that he was of the Dallas Police member 26, 1956, received ment on from Detective on which date he November $5.00 Stringfellow instructions. 2:80 P.M. with about Evans, shows, person; Dan was a colored evidence graduate College Assistant of Prairie A M and former View & Boy’s Branch, Secretary He the Moreland Y.M.C.A. policeman had for some four or months and was been five working as an officer. undercover Jordan, accompanied by
Evans testified that one Edward as a described user of narcotics and an underworld character Fat,” appellant, also who answered to the name “Little he met colored, on a street in Dallas him to North and “told he wanted the buy language which, explained, some stuff” the witness marijuana. meant underworld
Appellant replied place and that he to some would have get it, using and, and the three to the car di- went Evans was by appellant, proceeded rected Dallas. to an address in South Appellant asked and Dan Evans “how much we wanted” cigarettes,” “told him that I wanted a nickels worth of which language dollars testified meant of the underworld five worth. cigarettes
Appellant said let us for five “he would have five providing help smoke and “we dollars agreed.” that he would us one” re- Appellant or ten minutes then left the car and in five cigarettes Evans dropped turned and car and Dan four paid him $5.00. cigarettes Detective
The four were delivered to following morning. were there- The evidence shows and Sidney them Lee who tested after delivered Chemist marijuana. found their contents to be
290 cigarette produced smoked appellant fifth
by appellant and Jordan. Dan Evans
Appellant the evidence shows contends of law. accomplice as a matter witness 775; Lundy State, Rep. 2d v. 296 S.W. 164 Texas Cr. 179; State, 2d Texas Jones v. S.W. Augero cited 164 Texas Cr. 298 S.W. against state, authority are deemed such contention. distinguish by reason of Dan Appellant these cases would agreeing appellant fifth smoke the Evans cigarette; doing them then and there for
his failure to arrest selling presence, then arrest so in his and to *3 marijuana. agree agent conduct of an undercover can well the We ferreting
engaged in out violations of the Uniform Narcotic Drug Act leaves much to desired and even be termed agent reprehensible. long accomplice an so Yet the is not witness bring crime, merely
as he does not about the but obtains against engaged to be evidence used those in the traffic. purpose against That Evans’ was to obtain evidence sellers marijuana by is demonstrated the that he acted under fact $5.00, instruction of Detective who furnished the cigarettes appellant the delivered to him. fact The not later, by was arrested until the several weeks and not then agent, is purchaser undercover consistent with as Evans’ status a purposes for accomplice. evidence rather than an Appellant testify rejected jury did not and the his defense substituting finding of alibi. would not We be warranted in our jury though agree for that of the even we should that there was strong appellant evidence that place was at another when Evans purchased marijuana. State, testified he Stapler the v. Texas 120 837, presents 47 S.W. 2d a similar conflict in the evidence which jury. was resolved the Appellant’s complaint regarding testimony as to Dr. Lee’s the marijuana effect of presents calling the use of re- no error for only objection versal. The ness to qualification was as to the of the wit- testify, qualifications were well established. allegation The evidence sustained of the indictment
291 pur- joint If to Dan was made Evans. sale State, 112 v. no variance. McGee there would have been chaser State, overruling 50, 450, Asher v. Rep. 2d 17 S.W. Texas Cr. State, 1099; Stapler 120 162, v. Rep. 277 S.W. 102 Texas Cr. 837; Petty State, 263, 121 Texas Cr. Rep. v. 47 S.W. Texas Cr. Rep. 300; State, 218, 127 Texas Cr. Rep. Metaxes v. 2d 53 S.W. Rep. State, 888; Colley Texas Cr. 140 2d 75 S.W. 143 597. S.W. judgment is affirmed. REHEARING FOR
ON MOTION Presiding Judge. MORRISON, rehearing,
By supplemental appellant asserts motion for acting undisputed appellant was as that the shows that evidence agent guilty of and therefore not be Officer Evans could making upon Durham v. sale to him. Reliance is had Durham, undisputed Texas Cr. 2d 787. In S.W. purchased evidence was that the accused narcotics from Clarence and delivered the to the officer with no advance same showing way price any and with no was in interested that she bar, in behalf of ing. In the case at we have no such show- Clarence. parties his Here the directed the address in marijuana South Dallas and there delivered the witness. marijuana appellant purchased There no evidence that the Dallas it at no South price. or that he delivered to Evans advance *4 Remaining properly disposed cause convinced that we of this rehearing originally, appellant’s motion for is overruled. Judge,
DAVIDSON, (dissenting). Cooper
In 162 Texas 288 S.W. my my law in protest declared the over and dissent brethren this state to be: * *
“* design originates in the mind of if the criminal person commit a crime which officer and he induces a except induce- for such would not otherwise have committed ment, may a defense entrapment, constitute this is and in law to such crime.” my dissenting pointed that: opinion that I out
In case apparent my “It that what hold is that if a brethren officer,
peace by entrapment, person induces another to commit crime, person may prosecuted not be or convicted of the committing entrapped by crime because he was the officer into So, peace it. neither person actually officer nor the com- mitting punished the crime therefor.” majority of this court have neither overruled nor changed holding, directly applicable which is and con- trolling undisputed under the facts of this case.
Here, Evans, plain-clothes policeman and under-cover agent, was so afraid that he would disclose the fact that he was peace go officer police that he did not around near head- or quarters but superior only by communicated with his officer telephone. On the question occasion in previous telephone ar- rangement, Stringfellow, Evans met mentioned, the officer above o’clock, P.M., at 2:30 stadium, Stringfellow at the Dal-Hi said was “more or less a remote area.” In that connection he further testified : “* * * large parking there was a station to the west
Stadium. very Cars seldom come picked in there and I that loca- tion so that no one meeting.” would observe us in the
The witness also testified: “* * * gave I him a five dollar bill that I had ob- [Evans] tained from a fund up is set for the Narcotics Section to buy drugs, narcotics; contraband And told him to to the * * * vicinity .” The details Stringfellow gave of the instruction to Evans are not shown. may, Be that as it o’clock, later, about four hours at 6:30 P.M., Jordan, Evans met a known narcotics user and under- world character who Evans said was his “contact with underworld” and whom he used “as a contact.” *5 Traveling vehicle, in a Ford,” “State owned a 1951 Evans and Jordan went to the corner of Thomas and Hall Streets city parked of Dallas and nearby. They their car walked around the corner and met or appellant, ran into the whom ap- knowing.” not know did Evans to be “seemed Jordan that: pellant. Evans testified who know him to ever seen “Well, first time I had it’s the * *
he was buy they to appellant that wanted Thereupon, told Evans re- Appellant marijuana.” meaning stuff,” “specifically, “some place else and plied some that to there “he would have leave Ford get parties the state-owned to it.” three then left All asked Appellant Spring Avenue. and drove to the 3300 block of buy, and Evans he Evans how much and Jordan wanted meant cigarettes,” replied: which he said “a worth of nickels agreed have Appellant “five to “let dollars worth.” [them] cigarettes [appellant] would providing five he for five dollars help and one.” Evans said smoke To that condition [them] agreed. Jordan house,
Thereupon, appellant left, nearby and in went into cigarettes about in “dropped five or ten minutes four returned and paid appellant agreed the car.” price Evans dollars. of five In mentioned, accordance with the and the condition Jordan appellant other, cigarette. fifth, smoked the and or Evans then place drove back and left the at the had first him, Jordan, also, contacted after the car. left morning The next at a secret rendezvous initialed Evans Stringfellow cigarettes, delivered to the four which were shown marijuana. to contain
Appellant was not arrested until some months thereafter. foregoing testimony. is the state’s Jordan, coconspirator who acted with and awas with Evans buying cigarettes, testify. did not Appellant testify showing did not but offered evidence alibi.
I pinpoint for, need not facts, me, the above there but therefrom, conclusion to be being derived design criminal to have someone not know whom the officers did and had never engage heard of to violate law and to selling crime of marijuana originated in the mind of and of pursuance Evans. design, In aid of with *6 propose the proceeded to to narcotics user officers a known appellant the they had no they did not know or of whom —whom selling engage being likely in
prior information as to to his selling and marijuana by Evans to he violate the law —that and, marijuana by contact, the such induced not law, and could to the he would not violate but for which have done so. State, Cooper
Every element of in v. the rule announced supra, present authority rule here. and under the Under that ought by my brethren, there announced not this conviction to stand. my going they apply
If brethren are not and what to follow ought Cooper they said was the law in the case to overrule that agree thereby challenged, by case right and that I was when I my dissenting opinion, holding the of the correctness the Cooper case. my It was my view then and it is view now officers guilty entrapping of one in the commission of crime become accomplices to the may crime committed and a conviction only by corroborating
had testimony. their Cooper But the case only requires is not the case which reversal of this conviction. I call Aguero attention to the case of 164 Texas 298 S.W. 2d Cooper which followed the case
by about ten months my and supporting brethren cite as conclusion Aguero reached in the instant case. The case was a possessing conviction for case, narcotics. The state’s there, depended upon question police as to whether guilty officer entrapment. holding Cooper The case is by there following extended language:
“There can question be no that Bob Richards would have party become a to the crime if he had done what he did in order to secure the narcotics for his own use. Just how far officers legally in their efforts to ferret out those the business of crime has been a source of considerable concern this every other land, Court in general but certain rules based upon sound reason seem to have been evolved. An officer does not party become a to a crime if participates solely therein for bringing purpose of apprehending engaged crime justice.” him is dis- announced far-reaching there effect of the rule analysis thereof: cernible have been agent would Richards
It is there said *7 “if illegally possessing the narcotics party to the crime of the narcotics he did in order to secure he had done what governing the words, one law use.” In we have his own other acting an officer as of an officer is acts and conduct while he benefit, acting and an own and another rule if for his fear impunity and without officer violate that law with long capacity. punishment as he in the latter of so acts susceptible pointed Cooper of that I case was out very construction. Aguero stop quotation
But the from the case did not above following language: already By with what I have said: party participates “An officer does not become a to a if he crime engaged solely purpose apprehending therein for the of one bringing destroyed justice,” crime and him to has this court principals the law of in so far as officers are concerned. principles
One cardinal of law in criminal cases is persons, that “All principals guilty acting are to- who are of gether in the commission of an offense.” Art. P.C. says That statute subject nowhere that “officers” are not exempt thereto or are therefrom.
But, holding Cooper case, obedience to the in the this held, court has holds, also, here so that when an officer encourages, aids, agrees to, together and acts with others in guilty commission crime of he is of no offense. peace If a acting officer guilty can not be of with another crime, commission of a neither could the co-actor be guilty, peace because if guilty officer is not no has crime been committed. peace are Thus officers of this em- state powered, guise under apprehending engaged crime,, any to commit and all crimes. ought
Such rule not to exist. This case should be reversed because the witness Evans is testimony is un- law, and his accomplice, as a matter of
corroborated. this conviction.
I dissent to the affirmance of Bailey Leo v. State. 30,700. June 1959. No. Rehearing June 1959.
Motion for Overruled *8 Winborn, Dallas, appellant. Leonard R. for Flagg, Wade, Attorney, Henry Merle District Criminal Douglas, Attorney, Dallas, Assistant Leon District State’s Attorney, Austin, for the state.
MORRISON, Presiding Judge. burglary, prior same The offense is with a conviction for the alleged enhancement; years. punishment, offense station, H. from the Gardner’s service located one block W. Dallas, Denley intersection of Morrell and Drive in bur- glarized closing night question; sometime after time on the and, midnight, by police when notified found after Gardner large grease gun grease, a pounds that a of which held fitting missing gun, pair pliers for the a of and a wrench were building. following day from these items were returned police. to him Robbins, young vicinity Kenneth man lived in the who foot, station, midnight night way
the and, according was on his home on at men, testimony,
to his saw two one of whom he light appellant, pass identified under the street at the as large filling Denley carrying intersection of Morrell and Drive