Appellant was indicted, tried and convicted of one count of selling heroin on March 16, 1978, and one count of selling marijuana on March 30, 1978. A motion for new trial was filed, *262 amended and thereafter denied. He appeals.
A review of the record indicates that appellant was employed as a bell boy at the Grady Hotel in Macon, Georgia, during all times relevant to this action. Appellant’s arrest and prosecution was as a result of undercover work by a police officer named Olivia Smith. Officer Smith infiltrated the group of individuals that lived at the Grady and, in particular, she was frequently seen accompanying an individual identified as "Alabama,” a resident of the hotel and a known marijuana user. Officer Smith did participate, or, at least, feigned participation in smoking marijuana (i.e., she participated to the extent of having the smoke in her mouth, although she denies actually inhaling the smoke). The record further reveals that Officer Smith actually approached appellant with respect to the sales of both heroin and marijuana.
1. In support of the general grounds of the motion for new trial appellant enumerates that the verdict is contrary to the evidence, without evidence to support it, against the weight of the evidence and contrary to law and the principles of justice and equity. "While the jury can and must weigh and analyze the evidence, an appellate court, in reviewing the general grounds, is restricted to determining if there is sufficient evidence to support the verdict of the jury.
"Davis v. State,
2. In Enumeration 2, appellant contends the trial court erred in failing to charge his second request to charge which actually embodies three charges. In essence the requested charge states that the function of law enforcement officers does not include the manufacturing of crime and that "decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen.” Furthermore, appellant requests that for reasons of public policy, principles of justice and equity, ¿nd the honorable administration of justice this court should refuse to condone the conduct of Officer Smith and that he (appellant) be discharged from the charges or granted a new trial. The conduct of Officer Smith to which appellant objects is her alleged participation in smoking marijuana and her alleged presence in the room of "Alabama” with "just her night clothes on.”
The legal principles which form the basis for the requested
*263
charge are from the dissenting opinion of Justice Brandeis in Olmstead v. United States,
The entrapment defense focuses on the intent and predisposition of the defendant to commit the crime as well as upon the conduct of the government’s agents. Hampton v. United States,
In the case at bar, the role of the police officer was not so extensive as to be analogous to the government involvement held offensive in Harpe, supra. Enumeration 2 is without merit.
3. In Enumeration 3, appellant contends that the trial court erred in refusing to give his seven requested charges on the law of entrapment.
Appellant is precluded from interposing the defense of entrapment as to the charge of distributing heroin because he controverted the allegations of the indictment. "In order to raise the defense of entrapment a defendant must admit the commission of the crime; but that he did so because of the unlawful solicitation or inducement of a law enforcement agent.”
Carter v. State,
We must now proceed to consider appellant’s contention that the trial court erred in refusing to charge the jury on the law of entrapment with respect to Count 2 of the indictment charging appellant with selling marijuana. Appellant testified that Officer Smith and her companion, "Alabama,” approached him and requested that he go to a particular establishment and purchase a bag of marijuana from an individual identified as "Gamekeeper.”
The defense of entrapment comes into play when the accused has been induced to commit the act, which he otherwise would not have committed, "by undue persuasion, incitement, or deceitful means.” Code Ann. § 26-905;
Orkin v. State,
Absent other circumstances, it is generally held that where an officer simply makes a request, as to purchase contraband, and there is ready compliance, the defense of entrapment is not available.
Thomas v. State,
We are satisfied that there was sufficient evidence which showed governmental "incitement” — by supplying
all
the information concerning the marijuana as well as evidence of the absence of appellant’s predisposition to commit the crime — to raise an issuable defense of entrapment. Therefore, the issue should have been resolved by the jury. Furthermore, the defense of entrapment was the sole defense relied upon by appellant with respect to the charge of selling marijuana. It has long been held in this state that "[wjhere there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense, so specifically that the jury will not only be required to pass upon
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it, but will be enabled to do so intelligently, under pertinent rules of law and evidence, practically withdraws that defense, and to that extent prejudices the defendant’s right to a fair and impartial trial.”
Thompson v. State,
Thus, while it was not error to refuse to charge on the law of entrapment with respect to the charge of distributing heroin, the trial court did err in refusing to so charge with respect to Count 2 of the indictment charging appellant with selling marijuana.
4. In Enumeration 4, appellant contends the trial court erred in preventing defense counsel from reading to the court in the presence of the jury during closing arguments from the decisions of
Harpe v. State,
supra, and
Hall v. State,
".. . [T]he jury in all criminal cases, shall be the judges of the law and the facts.” Ga. Const. 1976, Art. I, Sec. I, Par. VIII (Code Ann. § 2-108); Code Ann. § 27-2301. In civil cases the trial judge is the judge of the law and the jury the judge of the facts. Central of Ga. R. Co. v. Sellers,129 Ga. App. 811 (201 SE2d 485 ) (1973). Because of the distinction made between the roles of the jury in a criminal and civil case, counsel in criminal cases are permitted during argument to read to the jury excerpts from decisions of appellate courts of this state. Conversely, in all civil cases "[r]eading excerpts from decisions of appellate courts of the state in the presence of the jury” during argument is grounds for reversal. Central of Ga. R. Co. v. Sellers, (4), supra; Harris v. Collins,149 Ga. App. 638 (255 SE2d 107 ) (1979).
It has long been held that under a proper interpretation of Code § 27-2301, "[i]t is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence. While the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law.”
Berry v. State,
Although counsel may read and comment to the jury on the law during argument in a criminal case, such right is not absolute, but is circumscribed by limitations. It is well recognized that the court has the power to prevent unfair or improper argument, or to restrain counsel from reading to the jury in such a way as to confuse them, or to proscribe the reading of law not applicable to the case or to points in issue.
Clark v. State,
The trial judge’s statement in the presence of the jury that he did not believe counsel for defense had the right to read Code Ann. § 26-905, after the same had been read to the jury, does not constitute reversible error.
Powell v. State,
The conviction of appellant as to Count 1 of the indictment is affirmed. The judgment as to Count 2 of the indictment is reversed.
Judgment affirmed in part and reversed in part.