*1 permitting state did not err in Under the facts court proof. appellant a court Proof that was under make the going premises restraining on the where order him from condition of admissible to show the committed the assault was time, and the issue his mind on the issue his intent at malice.
Complaint questions propounded to is also made to certain on state in which he was cross-examination going boys if talked about with his asked he had not to other girl Beverly friend Paxton and told them did not want them go her, stay away with and to from her. proper inquiry by think this awas the state to show
We going appellant’s intent and motive the Paxton home night committing question on the the assault injured party. However, the record shows the court sus- appellant’s objections questions propounded tained to the negative jury questions not to consider the instructed answers thereto.
Finding support the evidence sufficient to conviction appearing record, judgment error no reversible affirmed.
Opinion approved the Court. Johnny Cooper Pierce v. State 27,891. January 11,
No. 1956. Rehearing April 4, State’s Motion for Denied 1956. *2 es, Dallas, appellant.
Z. E. Coomb Henry Wade, Clark, Attorney, Harold Criminal District G. Blackburn, Jr., Potts, George P. Charles S. Assistants Criminal Attorney, Dallas, Douglas, Attorney,. District and Leon State’s Austin, for state.
MORRISON, Judge. Presiding procuring; punishment, jail
The offense months and a fine of $100.00. Turrigiano Officers and squad Woodall vice city police night
Dallas testified that on question, while- clothes, they dressed in went appel- civilian to the motel where employed porter Turrigiano lant was and that Officer had a appellant Turrigiano conversation appellant with the office. told the Antonio, quote was from that he San and we his from testimony as follows: “Well, my knowledge, to the best I asked him if he had available, girl know, one or two. He said he didn’t then after — right other which I don’t conversation recall some finally now he get agreed girl.” to us a this, presented Following a woman herself at a cabin in waiting and price was discussed which the officer she charged intercourse, sexual forms of whereupon various she The was then and arrested. found arrested. testifying behalf, appellant, in his own stated that before days going at motel four before the to work herein offense porter charged worked as a at had Merchants he Delicatessen during days employment motel no and that four at the those get approached women one had him in an him secure effort purposes. arrived at for illicit He stated that when officers Turrigiano night question the motel on the he told Officer girls any. further that had no didn’t He testified he know gave suggested fifty that he call that the officer him cents porters some get at and find out from them where other hotels and, calling hotels, girl; he he did so after several finally Washington, at the reached his friend who worked St. George, told men in a certain num- him that had two bered at his who wanted a date. He stated cabin motel girl telephone did know the or talk her over the did not got ar- her when to the motel until after she was see she following quit job at the motel his rested. He testified that he employment since. arrest and had followed line *3 question presented is failure of The sole for review the the charge entrapment. trial to on the defense of court Recently, State, volume), (page in 85 282 Brown v. S.W. 224, 2d held the of Brown did not raise the we case, entrapment. that he issue of In that Brown testified “called girls’ Joyce phone had.” a list of which he His from numbers taking from officer of was that orders the defense he was prostitute. called law when he think
But we have such a case here? We not. do State, 155, Peery, 283, In v. Tex. 134 2d 138 Cr. S. W. 285, we said: legally ‘entrapment’ has defined
“The word been as ‘the se- a improper crime, duction or inducement commit and not to trickiness, testing by trap, suspected.’ or deceit of one U. S. D.C., Wray, ‘entrap’ Mr. v. 8F. 2d 429. defines word Webster trap ‘entrapment’ in a as ‘to artifice.’ The as used catch legal presumption in a carries with it the that the sense agent the offense then accused manufactures incites to prosecution.” commit the offense “ Entrapment has also been defined as ‘the inducement of contemplated a him one to commit purpose crime mere ” against prosecution instituting criminal him.’ State 1, 219, 1206; A. Marquardt, 139 Conn. 89 2d 31 A.L.R. 2d v. Sor 435, 210, S., 413, 423, 53 77 ed. v. 287 S. S. Ct. L. rells U. U. 249; Wray, C., 429, 8 F. 2d U. v. D. 430. 86 A. L. R. S.
627 origi general intent It the criminal is the rule where fact that officers furnish in the mind of the accused the nates opportunity for or aid the accused the commission to prosecution. v. a crime constitutes no defense such Stevens to 906; 333, 110 2d v. 133 Tex. Cr. R. S. W. Sorrels U. S. Law, S., supra; supra; Marquardt, 22 C. J. Criminal State v. originates 45, However, design p. sec. 99. if the criminal person commit a mind of officer and he crime induces except not otherwise committed for such which would inducement, entrapment, this is and in constitute a. law S., supra; v. defense to such crime. Sorrells quardt, U. State v. Mar S., 143; supra; Cir., 8 273 F. A. L. R. Butts v. U. 18 S., Cir., 674; S., Cir., F. v. 7 51 2d Morei 127 O’Brien U. F. 2d v. U. 6 827; 276; Texas Law Review 41 9 Yale Law Journal Law, 1249; 25; S., 45, p. 15 Am. 22 J. 99. Juris. C. Criminal sec.
Where the raises an issue evidence as to whether the intent originated particular commit a crime in the accused’s mind inor the mind of the officer and whether accused in duced to act in manner which would not otherwise have except inducement, question for such then the jury. S., of fact should one submitted to the Sorrells v. U. supra; Marquardt, supra; People Kozakis, v. State v. 102 Cal. 58; App. People Gallagher, P. 2d App. 228 v. 107 Cal. 425 504; Cir., Sawyer, P. States 3 F. United 169. Ac 2d cording appellant’s testimony, he was not the business procuring, prostitutes, arresting knew no and the officers persons subject the first mention were to him. If this true, catching then the officers were ap were pellant artifice *4 in his established business but their inducement a criminal caused him to commit act which he would not have except for such inducement. committed appellant
We have concluded of the raised entrapment which should the issue have been submitted appropriate jury under instructions. th trial, Upon another the state will no file a doubt in- new wording that it will follow the complaint. formation so of the judgment is reversed and The the cause remanded.
WOODLEY, Judge (concurring). properly called a Whether defense to crime testified, not, if, appellant he as previous- state or had in this engaged ly activity purpose intent been in similar and had no doing so, seeking prosecute, convict and the state is punish envisaged, planned him for an and its offense which was by appellant for sole commission activated officer obtaining purpose a crime which is his conviction for justice product officer, activity of the creative common prove required appellant permitted to facts. such revolting exist, If of so shown or found to the consumation plan ought self-respecting permitted a tribunal. not to be S., L. Sorrells v. 287 U. Ed. 413. U. S. question
The officer in admitted such to secure no scheme inducing persons by the conviction of them violate innocent might prosecute the law in order that them therefor. If he had, the writer entertains doubt that would prosecuting no prompt protection received at the hands of the attorney and from trial court. issue, however, by appellant’s testimony and was raised charge appropriate jury, requested
was an for the and the one appears attention of the to be sufficient to call the matter to the court.
DAVIDSON, (dissenting). brethren, holding my As I and understand this construe they have licensed the commission of violations of the law and illegal opened way pen- the commission of acts without alty. they Here is what hold : instituting
If, prosecu- mere a criminal against person, peace person tion induces such contemplated committing which had not commit crime person crime, aas result of that inducement such commits a lie, prosecution person no will because induced has com- entrapped by crime he was mitted no because into officers committing crime.
My quote one of the definitions of the term “en- trapment,” follows: *5 “ ‘ inducement of the one commit a crime not con- .
templated by instituting him for the mere criminal ” against prosecution him.’ Further, definition, my connection with that brethren say:
“However, originates design mind of if criminal in the the officer, person the he induces a to commit a crime which except would not induce- otherwise have committed for such ment, entrapment, may this is and in law constitute a defense to such crime.” pronouncements my demonstrate,
These two themselves, and within proposition the I first correctness of the They magnify pronouncements asserted. those and make sure holding, no one will they misunderstand their reverse give following this case because trial court failed charge jury: to the “ charged you ‘You are further that if find and believe from you evidence or if reasonable doubt thereof that the defendant, Johnny Cooper, instigation Pierce was induced at the Turrigiano of Officer charged, to commit the offense if same was committed, prosecuting same, with a view of him for the with- prior knowledge out or information that the defendant had com- offenses, you mitted similar will find guilty defendant ” say by*your verdict.’ apparent my It is that what brethren hold peace is that if a officer, by entrapment, induces person another to commit a crime, person may persecuted be or convicted of the entrapped by crime because committing the officer into person So, peace it. ting neither nor actually commit- punished the crime therefor. Under the facts here presented, my brethren conclude that guilty officer was entrapping ing. Therefore, appellant committing into procur- the crime of law, under the rule of my as announced breth- ren, appellant should have been awarded an instructed verdict guilty, of not there was because no issue under the facts toas entrapment. connection, I call In this attention to the fact that a witness in his own behalf and guilt testified as admitted his charged procuring, which was against crime of the crime him. holding, then, majority court, Under by peace entrapped
person officers committing who into *6 630 guilt though his thereof, he admits guilty even
crime cannot be under oath. me, only palpably erroneous but is, a doctrine Such absurdity. unsafe; approaches it
unsound following: mean, demonstrating I let us assume what As a inducing crime in commit another to For of ap- therefor, peace officer may prosecute a him order that he suggests the crime person commit proaches that he that burglary, any theft, another, upon or the crime of assault thereto, never person approached had other offense. Prior suggestion crime; committing a idea but entertained the yields and com- thereto implanted in mind and he has his been charged the crime with crime. He is arrested and mits the admits Upon officer committed. the trial the case the has committing the entrapped into accused and that facts and testifies thereof admits the commission crime. The accused suggestion of the the crime because that he committed my holding disputed. these is Under officer. None of facts in- entitled, an here, would such the accused brethren guilty had stance, because he verdict of to an instructed an notwithstanding this, fact that committed no crime —and burglary has been a theft or assaulted or individual has been actually committed. it,
Never, my today announced has when until recognized in Texas. doctrine been
Judge Woodley, speaking for rehear- for himself on motion Ivy ing opinion, in a case writer of as late as and for the this declared: Tex. 277 S. W. 2d Cr. previously have not held that en- “The courts of this State though crime, was trapment a the inducement defense agent of the State.” an officer or longer by majority holding now no adhered to a is That only held that is not com- who have now this court confessing prevents the accused from to or plete defense but admitting crime. understanding always recog- my court has
It officers, entrapment by peace it has but nized the doctrine recognized fallacy that no offense has been never before contrary, committing entrapped it. To the one into committed entraps peace always that when rule in Texas has been he becomes person a crime into the commission of another testimony, accomplice to convict his thereto. And order same the state must corroborate corroborated, witness, and, con- accomplice when other *7 viction will be sustained. fully that, here, has fact officer
I call attention to the the guilty part in the crime. admitted his were, effect, expressed expressed here in those The views' my (page
by me in dissent the case of Brown v. volume), affirmed 2d 224. The Brown case was this S.W. proposition the that the facts failed to show though procuring at even the accused did commit the crime suggestion instance and officers. My say Brown case. that this case differs from the they I fail to see wherein or how reach that conclusion. If en- case, trapment Brown case. is shown in this it was shown concerned, In so far as the law is the difference between is, my opinion, Brown case and this case difference same only that between “six” and “a half dozen”—a difference exists thing! meaning the same words Finally, my from brethren cite authorities our federal courts holding supporting their here. as concerned, going I
In so far I am am follow the Texas long legally rule which has been established and which is sound. support holding majority If federal courts of this wrong ought court, here, they are and this court not to follow them. concurring my opinion, Woodley goes brother
In his much majority opinion, for further than does the he adds a thereto far-reaching rule. and more new adheres is that if a one on trial for The rule which crime suggestion same at peace of a that he committed testifies suggestion he officer, so, which would not have done but suggestion had never committed prior such to such crime thereof, he would contemplated the commission or entitled believing having jury’s upon acquitted, reasonable to be says justice Woodley that common facts. doubt of such and shown require such defense be raised and that would so accused; only points that in this by out was a “scheme that there no admission case the made inducing them persons innocent secure the conviction of might prosecute them therefor.” law in order that he violate the following fallacy such rule is demonstrated assumed case: robbery.
“A” The evidence over- is on trial the crime of guilt. whelmingly committed the He testified that he shows “B,” doing peace entrapped into crime but he was so; suggested officer, do “B” him and that he came to nor had committed such crime that he had never theretofore robbery; committing that after idea of he formed studying gestion sug- matter for a time he decided over the *8 good would commit a one and that he of the officer was robbery; done and that he would and did commit the suggestion “B,” peace officer. for the of so but facts, holding my of would Under such a state brethren jury “A” have the instructed be that would be entitled to “A” they had a reasonable thereof would if or doubt believed robbery. guilty of the not be crime suggestion only justi- did the another become a When complete by a defense to the commission of a crime fication but Never, my decree. accused? until brethren here so says self-respecting My Woodley that no brother tribunal finding permit “A” a would to be convicted that the facts by true. the accused were testified to Such, indeed, great a judges is terrible indictment of those graced steadfastly this court have heretofore and who who re- agree holding adopt my to such a as that fused which here announce. affirmed, should be and the This conviction Texas doctrine to. adhered stated, respectfully my I enter
For the reasons dissent to the this case. reversal of REHEARING FOR
ON STATE’S MOTION Judge. WOODLEY, 309, p. Sec. in 12 Tex. Jur. The so-called rule stated Texas 70 Tex. Cr.
63, supported by v. of Davis the case recognize en- declined to where this court 158 S. W. offering an to bribe trapment a defense to the offense attorney. county assistant valid, there is may may not be
While the distinction entrapment cannot authority defense of to the effect against public welfare successfully interposed for an offense be by bribery accepting public official. State a a such as bribe Jersey). Daugherty, (New v. 93 Atlantic 98 case, Harper “Considerable
As stated in the Davis legal indulged text- hairsplitting courts has been discussing subject (entrapment).” writers Though which deal Texas found number of cases witness, entrapper accomplice involv- with the ing as an no case offering public official decided offense other than bribe to a defense Davis that the since have we found statement State recognized and in most in the Federal courts the states is not in Texas. available single
Nor writer disclose a does the research made graced great judges instance this court where the who have showing past conviction a record have affirmed a under an offense person otherwise innocent had been convicted *9 have com- purpose commit and would not which he did not to pur- except whose sole mitted for the inducement of an officer pose conviction. was to secure judges this court to- illustrious former
The attitudes of following opinions. in ward are revealed Judge 489, 450, Guyer State, Tex. R. 36 S. v. 37 Cr. W. Henderson: reprehensible on conduct more can conceive of no “We officers, duty crime, ‘nip
part prevent and it in whose it is to encouragement doing, bud,’ and of so to lend aid in instead carrying it out.--- gone great giving encourage- way
“Some Courts have in adopted ment by very questionable to in detectives some methods guilt criminals, them they to not discover but yet gone far, will, I and trust never aid encour- as to lend or agement may, duty, to officers who under a mistaken sense of encourage parties they and assist to commit crime in order that may doing.” punished arrest and have them for so State,
In 328, Smith 154, 61 Tex. Cr. R. re- S. W. grounds, Presiding versed on other following Davidson had the say entrapment: about regard “In phase bill, say to this we desire detective, state’s case was cases, up made the hired who worked developed and in this case fact that he had induced whisky to secure the for him with a view and instituting very prosecution. every In case Jor- dan had induced the violation of law to which he testified. This instituting prosecutions against manner of citizenship of the state inducing deplored. them to commit crime is to be eminently proper deligent While it is that officers should be ferreting out law, yet crime and violations of the it does not theory occur to us predicated our law is idea that men should be induced to violate the law in order that prosecution may brought machinery be about. The of the state put operation crime, should be punish into to detect and not but organize prevention it. institute of crime is one of purposes law, encouragement the main propa- our not its or gation.”
In Scott v. 70 Tex. Cr. 153 S. W. reversed grounds, Presiding Judge on other speaking Davidson for this Court said:
“The writer has had occasion heretofore to criticize the inducing character and manner of men to commit crime as is evidenced testifies, this record. This witness in- contradicted, agreed controverted give or the sheriff him for each money case he would ‘turn in’ $10 and additional compensation if a conviction should occur. are The officers inducing justified employing men to commit crime or others to induce them prosecu- to commit crime in order that duty officer, instituted. tions It is his where he engaged parties crime, every understands what are to use legitimate permissible by effort law to detect and ferret *10 bring justice. out crimes criminals trial and But this does
635 the go and induce justify employing parties out not him in prosecutions instituted that citizens to commit crime Legislature the the of carried on. We call attention here legislation suggest appropriate matters and that such would occurring. prevent matter This be enacted to matters of this sort State, thoroughly gone Judge 37 by in Dever v. was Hurt over 396, also, See, case of Bush Tex. 1071. the Cr. S. W.
State, present of court.” the term this 151 W. decided at S. regard court, deciding Davis v. this
Without to whether State, supra, entrapment was held that the the view defense facts, opinions any not this later available in state under set of upon, entrapment of this court was relied where the defense of raised, light showing in the record the viewed of the issues claim, entrap- supported plea had indicate that the or facts the ment have would been held to be defense. pro- In Cliff v. 2d the state’s case of S. W.
curing by guilty was en- made the been officer claimed have trapment. by fully testi- His was corroborated mony prostitute. of the requested following special
The record shows that Cliff charge: you further, jury, “Gentlemen are instructed you if believe idea from the evidence that to have procure other, defendant some first and obtain said female or originated officer, prosecuting Riley, with said R. P. and he suggested personally and solicited defendant to obtain alleged herein, female, said female or some unlawful other intercourse, thereof, you sexual if doubt reasonable you by your acquit say will verdict defendant guilty.” disposed exception Hawkins to the refusal charge, saying entrapment “We think issue was
raised the evidence.” give charge exception that the The fact to the failure to ground disposed of on was the issue presupposes not raised the evidence evidence had the issue, charge upon entrapment raised the as a would defense proper. have been significance special
The Cliff case is of because it dealt with procuring, the distinction between it offense being raised case us that here the issue was the evi- before *11 636
dence, properly that held whereas in case the the Cliff court it was not.
Peery cited 2d Tex. 134 S. Cr. W. original charging prac- opinion, our awas case the unlawful medicine, entrapment tice of of raised the issue defense was following in the manner. alleg- suppress filed, A quash motion to and was the evidence
ing did, intent, certain and that officers with criminal entice entrap Peery the defendant of an into the commission offense that would otherwise not have been consummated.
Peery, verdict, moving re- addition to an instructed quested following charge, special exception and reserved an to its refusal: jury, prevention
“Gentlemen of of crime one propa- is purposes laws, encouragement the main of our not its gation. you If find that Defendant induced and was lured charged, did, by into the commission of thé if offense as he law, an agents, officer or officers or their or that said officers, agents, officer or employed parties go or their out alleged, induce the to commit if Defendant the offense as did, you stand, I instruct that a conviction cannot -” Defendant must be set free. brief, signed by Judge court, The state’s Davidson of this attorney, then state’s contains the statement “under doc- trine state, entrappers accomplices in this are only,” that, request reasoned since made no accomplice instruction on testimony, question entrap- ment apparent was before the It court. from his dissent- ing opinion herein that Davidson adheres to the views expressed in said brief. original
Upon appeal Peery submission it v. State accomplices was held that the were not shown officers to be save one, conceding that accomplice, this one was an testimony fully was corroborated.
Peery rehearing then complaining filed motion for any accomplice had made no contention that witness was an witness; that he did not move for instructed verdict on ground all in the case that of accom- plice witnesses, accomplice question and that witnesses was not re- before the court. He stated the rule law he was originates lying upon as follows: the criminal intent “Where entrapping person, the mind of the is lured into and the accused charged prosecute the commission of him the offense in order therefor, general had, it is the rule that no conviction though criminality question of the act is not affected many jurisdictions of consent.” He cited decisions from other supporting such rule. *12 being respective Peery state, Such of contentions and the
Judge rehearing: Graves wrote on again complains “He upon the doctrine re- which he quested peremptory his instruction on of con- was account his appellant tention violation, that the was lured into this and en- trapped by treating Alonso, and, the State’s witnesses into Mrs. therefore, permit because of such fact the law will not a con- viction under such application circumstances to stand. With principle agree.--- such a to these instant facts can not we “In this any species cause we fail entrapment to see in agent furnishing this money Alonso, telling to Mrs. and her go to appellant treatment, to for going appellant her being treated suffering.” for an ailment from which she was again,
Here
if the
entrapment
doctrine of
as a defense under
no set of
by
facts was considered
the then members of
court
Texas,
to be the law
fit to
contended,
as here
the court did not see
hand,
so announce. On the other
apply
the court declined principle
the
species
Peery’s case,
to the
failing
any
facts
to see
entrapment.
Judge
approval
Graves cited with
the cases of Swallum v.
S.,
U.
P.
Wray,
2d
and U.
v.S.
for County, Judge a bribe to the sheriff of Dallas approval holding cited State, supra, with Graves Davis v. to the effect that the inducement the officer would not relieve criminality. the act the accused of its
-638 entrapment or not the in a
Whether defense is available prosecution bribery offering for to bribe an before us. foregoing, many
In view of the from decisions jurisdictions upholding entrapment defense, other re- as a we upon main procuring convinced that a conviction the facts true, appellant, as testified jury if found to be permitted should not be to stand. necessarily
The invocation of the defense of
charged
(cid:127)assumes that
the act
re-
was committed. To decline to
upon
theory
guilt
verse
had
admitted
Washington
conveyed
that he called the Porter
to him the
wishes,
officer’s
fur-
or to hold
that effect
that his
testimony,
required
nished the
corroboration
officer’s
ground
deprive
would be to
him of
that he
relief
S.,
entrapped.
Hamilton v.
hearing strengthens majority opin- my conviction that me wrong ion and and exceed- the doctrine announced therein are dangerous. ingly rehearing amply paragraph
A in the motion for state’s presents my it, here, I views that have decided to insert this, part my additional It as follows: dissent. reads holding philosophy “Such a at with is variance holding contrary stare of Texas. doctrine of laws Such is to the subject; decisis in Texas it amounts to the creation on same Appeals defense for the convicted the Court Criminal legitimate law-making procurer authority Texas— which the create, Legislature fit and never seen unless this be —has offender, special of this low character of law the benefit general makes the it enacted this court which then is a law thief, arsonist, abortionist, murderer, rapist, exempted prosecution from for their crimes all other criminals against dignity peace against people the rest of the instigated by deputy provided some the crime catching peace other constable or prosecuting him ...” offender