*1 In 18, No. 5513. Bank. Dec. [Crim. 1953.] BRADDOCK, THE PEOPLE, Respondent, RAYMOND M. Appellant. *3 Rudolph Pacht Pacht,
Isaac Arthur F. Larrabee Appellant. Michael J. Brown, Attorney General, and
Edmund G. Respondent. Clemens, Attorney General, for Deputy by the was tried EDMONDS, Raymond M. Braddock J. charging him with upon jury court an information without Safety four violations of section 11163 of the Health upon judgment of appealed Code.* He has from a conviction for a new denying each his motion count and from an order be exists trial. Braddock asserts that a material variance point relied proof. tween the information and Another law, evidence, of shows is as a matter entrapment. result of the commission of the offenses as a substantially language, The four are in the same counts alleged of them date of Each for the offense. except pro- “Except regular practice provides: of his *Section administer, furnish, fession, person prescribe, narcotic or to or no shall pathology any person his for a not under treatment who addiction, except provided in this than narcotic condition other ’’ division. osteopathy, “did charges Braddock, a licensed doctor feloniously prescribe narcotic, willfully, unlawfully and person under his wit, methadon, Mantler, J. not to E. pathology.” Mantler, inspector for a for the treatment principal Enforcement, was the witness Bureau of Narcotic testify presented did People. for the defendant no evidence. following
The record shows the facts: company Grimes, In the of one addicted to the Mantler went to Braddock n residence and narcotics, use “Roy introduced to the doctor as Bates.” Mantler was you help “I him, hoping my said could me out with asked, your wife.” Braddock “What kind medicine does replied, “Well, wife use?” Mantler she has used lots couple years.” if he different kinds the last Asked bring doctor, could her to the Mantler stated that would *4 practical. They subjects not be convenient discussed other minutes, said, “Oh, well, for a few and then the doctor let’s go and I’ll write her one.” inside house, three men entered the where Braddock seated produced prescription
himself at a table and book. At moment, Thomas, one known Mantler to be a narcotic addict, appeared at the front door. Grimes left the room engaged conversation, they disappeared and Thomas in and from Mantler’s view. Braddock asked Mantler for his wife’s given name and was the fictitious one of “Julia M. Bates.” say “You she used methadon?” Braddock asked. Mantler answered, “Yes, and said, demerol.” Braddock “I think methadon is better.” Told Mantler that preferable “shots” were tablets, prescription
the doctor wrote a for 120 cubic centimeters of methadon to Julia M. Bates at a fictitious supplied address by Mantler. “She has T. B.?” he asked. Receiving an reply, affirmative he wrote those initials the prescrip- tion form. “How you much do want for the favor?” asked replied, Braddock Mantler. “How much you have got?” told him Mantler that he $30. had Braddock said, “I will give half you take of it. That will enough get along on.” gave him money Mantler departed. prescription
Mantler had the filled, although with difficulty quantity because of the drug indicated. When he substance, gave received the it to a chemist for analysis.
Testifying expert, as an the chemist stated that methadon is a manufacturer’s name for amidone, a narcotic enumerated Safety Code, and included 11001 of the Health and section provisions
within the of section 11163. again days later, Mantler visited Braddock ’s About remarked, preliminary conversation, After home. some good.” said, Braddock “What was it “My wife is not too Mantler stated that it was metha- using, delaudid?” she is said, “That is not as bad as some stuff.” don. The doctor prescription book. with a He left ‘‘ the room returned again. I her can’t seem to remember me a run down on Give using “Well, has been answered, Mantler she it.” she bad she doesn’t have couple years now.” “Is when replied. is,” sure Mantler doctor. “She it?” asked the up chimney.” me nearly runs “She on the notation, “T. B.” made Braddock wrong his wife. what else was with and asked Mantler form hysterectomy.” The had an “old told him that she you using?” are yes. How much of these said, doctor “Oh said, me, Doc. I “Not am at Braddock Mantler looked got enough trouble.” Braddock re- using any. I have Morphine makes alcohol. anything “I use but marked, never any stated, “We won’t have trouble very odd.” He then me apart.” Mantler assured keep this far long you as accepted payment, In doctor so. try he would to do ’’ ‘‘ ought patient some After see this time. I $10, said, ‘‘ continued, me a time Give call some conversation, he further drop I will be home and will in. your wife you are sure when patient.” see the I should *5 later, Mantler visited the doctor’s
About a week home for He entered the house and was third time. invited to writing prescription After to Julia down. sit M. Bates methadon, said, he “You are quantity of kind of short- replied, “Well, Doc, Mantler ening up the time.” is it “I said, last.” doctor holding. It doesn’t don’t want ’’ days. again He here before ten you come advised Mantler to accepted days, prescription. $10 to wait visit, accompanied by Mantler was inspectors fourth On his Enforcement and from Bureau of Narcotic from the Board The other men Examiners. waited Osteopathic outside. book, the doctor asked him Producing prescription date along. getting Mantler answered things that how he was having tough” and that he trouble “getting “pretty were paid receiving $10 the doctor after He along with it.” prescriptions kept that, were at if the least 10 assurance have no trouble. they would days apart, house, As be left the Mantler handed the to Blanchard, one of other entered, officers. Blanchard himself, identified and asked to see Braddock’s When records. questioned Braddock as to the Bates he identity Julia patient post
was told pregnancy that she was old who had a an hysterectomy. condition and a Braddock added had that he said, first contacted her when called her home. Blanchard to “Now, fact, Doctor, you as a matter of ever have seen Julia Bates?” The doctor had admitted that he not.
Blanchard told that Braddock who had been obtaining prescriptions him from under the name of Julia from inspector Bates in was an fact the Bureau of .Narcotic why writing Enforcement. He asked the doctor he had been prescriptions told, false and I “Well, fictitious and was am money.” you and I “Do financial straits need the violating you admit have been then and Federal State Narcotic Laws in the sale of these narcotics?” he asked. “Certainly, you got on replied,
Braddock have the evidence me; denying what is Thereafter, the use of it?” house, doctor, returned identified himself to the him his showed credentials. claim
Braddock’s of a material variance is based alleged information, charges conflict between the prescribed narcotics to E. J. Mantler in violation of Safety Code, section 11163 of the Health and evi- dence, prescriptions which shows that the were made out to Bates, person. M. Julia fictitious formally if, information sufficient in substance, An charges public the defendant with the commission give
offense in words “sufficient the accused notice (Pen. of which he is accused.” Code, 952.) the offense § material, a variance between the information and To proof must be “of such a substantive character as to mislead preparing likely the accused in his . defense, place . . jeopardy (People in second for the same offense.” 220, ; *6 226 Williams, People Amy, 27 Cal.2d P.2d v. [163 692] 126, 100 Cal.App.2d ; People Moranda, 127 P.2d v. [223 69] Cal.App.2d 703, 394].) 705
87 P.2d [197 substance, charges against the Braddock are based In by which transactions he sold narcotic prescriptions to Mantler, ostensibly for the use of another person, neither of being them under his treatment for a pathology. The true identity supposed the to be the man husband of Julia M.
Bates was made to known Braddock by both Inspector Blan-
800 present by Braddock was himself, chard and Mantler hearing. That preliminary at when testified the surrounding in circumstances testimony included detail the places writing prescriptions, with the dates the of the to used, and it was sufficient of those events and the names offense particular of the notify circumstances 40 (People Roberts, v. Cal.2d charged in the information. stipulation 501].) Furthermore, by 483, 486 P.2d [254 transcript of against presented by a Braddock was evidence hearing only a preliminary with proceedings upon not testimony. Braddock could slight amount of additional have been misled. charge again a
If on Braddock should tried which form the violating any of the acts section 11163 for jeop former present prosecution, may show bases for the “It is well ardy produced proceeding. in by evidence that evidence jeopardy, extrinsic plea on settled that a double which the identify crime of on is admissible the trial supra, Williams, (People v. defendant has convicted.” been p.226.) 27 Cal.2d at not however, does contends, that the evidence
Braddock 11163 the Health charge section support the that he violated prescribed were Safety Code, in that the narcotics violation Although shows a person. the evidence a fictitious misdemeanor, argument code,* of section 11165 that felony, 11163, which is a continues, violation of section or furnish” requires “prescribe, administer, that person. existing narcotic to questionable may properly whether an It is accused 11165 be convicted of a violation of section when the evidence known, knew, show that he or should have does not that prescription person for whom a is written is nonexistent. punishable section, even if under that it does follow But may amount a violation of section such act not also permit physician To hold otherwise would be to 11163. illegitimate purposes freely supplying prevent narcotics for felony simple writing being of a device of convicted person. prescription for fictitious No such could result Legislature. have been intended People Whitlow, Cal.App.2d 804 The decision contrary 35], is not to this conclusion. In that P.2d [249 violating 11163, defendant was accused of section case, shall states: “No issue a *Section respect.” any false or fictitious *7 upon charged but motion the offenses reduced to mis- were under section 11165 as lesser included offenses. demeanors Upon judgment appeal, upon of conviction was reversed ground violation section 11163 does not neces- sarily However, the include a violation of section 11165. proscribed by former
court did not hold that conduct sec- may prohibitions tion within the never be included latter one. apparent purpose regulate
The of section 11163 is to persons who, practice the conduct of of their those professions, legitimate have access of narcotics. sources responsibility practitioner prescribe such a nar is to (Health legitimate purposes. Code, & cotics medical Saf.
§11162.5.) physician may prescribe for, to, “A or furnish patient patient administer narcotics to his when is suf fering disease, ailment, injury, from a or infirmities attendant age, old other addiction. than narcotic physician prescribe, furnish,
“The shall or administer only good disease, narcotics when in he believes the faith ailment, injury, requires or such treatment.” infirmity, (Health Code, 11330.) & Saf. § object If the of section 11163 protect were persons not physician’s
under a treatment for a pathology faulty from diagnosis improvident administration narcotics, might prosecution be material in a under that section to show person whether the named in prescription exists. But purpose that is not the of the statute. It seeks instead to prevent having one access to narcotics from making them available, legitimate other than for a purpose, to one under pathology. treatment for a
From might the evidence it reasonably be inferred that Braddock intended go that the narcotics person to the identified himto as Julia Bates. M. Also tenable is the infer ence of his intention that the narcotics be used Mantler.
Despite Mantler 's assurances using that was drugs, might Braddock have believed that he was addict, shown his references to “shortening Mantler's up the prescriptions time” between and his advice to avoid more dangerous drugs. In event, either however, the conviction gist must be affirmed, since the of the offense was Braddock 's writing action in for a narcotic for a not under pathology. treatment
802 matter evidence, as a that the
Finally, Braddock contends testimony entrapment. From the law, shows unlawful prescriptions the sales of appears that Mantler, argues, it inducements. Mantler’s by result of made him as the were says Braddock, Mantler, originated in the mind of The crime trickery, and persuasion, fraud except for the officer’s and not have been committed. the offenses would many decisions in this state which define entrapment People Lindsey, reviewed in v. were defense 1114], P.2d Cal.App.2d 91 914 the law stated [205 doing crime, regardless is “Where the an act follows: anyone, agreed the courts are that if the of the consent originates in the mind of the accused and criminal intent completed, opportunity fact that an the offense the accused is aided in furnished, or the commission necessary in order to secure the evidence of the crime (Citations.) him constitutes no defense. prosecute therefor, persuasion necessary than is If uses no more the officer willing ordinary accused is sale, ready an entrapment.” sale, (P. 917.) no More there is make the “ entrapment of held: It is not the a criminal recently it was frowns, law hut the seduction of innocent by is what is con criminal career its officers people into a Where an accused not be tolerated. and will demned intent, the fact that when solicited preexisting criminal has a raises no inference of decoy committed a crime Cal.App. (People Schwartz, 109 entrapment.” v. unlawful quoted approval People ; with P.2d 450, 2d 455 1024] [240 Makovsky, p. 489; People accord v. Roberts, supra, at v. 119 ; People Branch, P.2d v. 366, 369 3 536] Cal.2d [44 ; People Alamillo, 113 P.2d Cal.App.2d 490, 494 27] [260 ; People v. P.2d Craw Cal.App.2d 617, 620-621 421] [248 181].) P.2d 530, 537 Cal.App.2d ford, [234 stated although Mantler had present case, In the medi kinds” of wife used “lots of different fictitious that his suggested prescription, and it was who cines, was Braddock suggestion 's a narcotic. Braddock first mentioned he who ’ ‘‘ ’ been written initial had came after the of T.B. description by any previous without Despite complete lack of illnesses. wife’s of his nature drugs were to he used Mantler that any suggestion purpose, Braddock advised to wait a improper prescriptions to avoid detection. between time sufficient arrest, Braddock placed under stated Moreover, when *9 selling prescriptions been he had because he was in financial money. straits and needed the
Entrapment positive “is imposing upon defense showing an accused the burden of that he was induced (People act is on commit the he trial” v. Schwartz, supra, p. People Grijalva, 455; Cal.App.2d 690, at v. 48 694 ; People Lee, Cal.App.2d 99, P.2d v. 9 109 P.2d [121 32] [48 1003]). evidence, Where the record shows a conflict judgment (People Crawford, will not be reversed. Cal.App.2d 530, 181].) P.2d 537 [234 purchase
Braddock concedes that if the officer had asked to a narcotic for an unlawful purpose, there would entrapment. be no basis for a defense of argues, He however, purchases that because Mantler made person sup- for a posedly ill, it must be persuaded concluded that the seller was only to violate law sympathy. However, because of selling who violates the law by narcotics to an evasive purchaser guilty supplies is as as one who an addict more forthright in his demands. That Braddock was not misled by his efforts, entirely is demonstrated studied voluntary, give legality a cloak of transaction. testimony, whole, The read as a shows Braddock to willing have been a seller to whom presented opportunity By judgment to sell narcotics. of conviction denying and the order trial, the motion for a new the trial judge determined that Braddock had not been entrapped making appellate into the sales. For an court to hold other require wise would it to draw different inferences from the supports amply evidence which that determination. judgment denying and the order defendant’s motion
for a new trial are affirmed.
Gibson, Shenk, J., J., C. Traynor, J., Spence, J., concurred.
CARTER, adopt J. I my dissent in this case the able opinion well reasoned prepared by Mr. Presiding Justice Shinn which was concurred in by Justices Wood and Vallée when this case was before the District Court of Appeal, Appellate Second District, Division Three. Raymond “Dr. M. Braddock was convicted a nonjury
trial of four violations of section 11163, Health and Safety prescriptions
Code,1consisting of issuance four narcotic separate days on not under his treatment. for one who was spend nine probation upon granted He was condition that jail, for a new trial was county months his motion in the denied, appeals. upon transcript of evidence at
“The was tried case testimony at the time preliminary some additional testimony People rested case of trial. The inspector the Bureau of Narcotic Mantler, an of one *10 Defendant offered no Enforcement, California. State of unconflicting. evidence is Therefore, the evidence. entrapment and also urges defense of “Defendant the in information that the a variance claims there was material Mantler, E. prescribed to J. charged medicine was that the prescribed for ficti- it was that proof the showed whereas person, ‘Julia Bates.’ tious is the entrapment that stated, rule as to
“Simply bring about the commis- intent to when the is valid defense entrap- originates the mind of in sion of unlawful act commission lured into accused is ping person and the in order that have committed otherwise offense he would not Hall, (People v. prosecuted. apprehended and he can be 783].) 40 P.2d Cal.App. 133 [23 introduced to Braddock one had himself Dr. “Mantler testified, was a whom who, he narcotic addict Donald Grimes year. (There for about a was no evidence he had known addict.) be narcotic known the doctor to was Grimes 's Dr. Braddock residence and intro Mantler to Grimes took Bates.’ Mantler ‘Roy as said him to doctor duced wife, to whom he take care of his hoped doctor would Bates,’ gave M. and he fictitious name ‘Julia gave the supposed The said he for her. doctor false address brought if she could asked patient see to him. medicine kind of she used and asked what Mantler The doctor past kinds in the used all different two had said she dog about the years. After a conversation doctor’s and his house the doctor cat, entered the doctor’s asked they wanted, whether Mantler his wife used Metha what was replied mostly or Methadon Demerol. A don and Mantler paid and Mantler was written $15. doctor etc., person prescribed to be Narcotic not not under no 11163. ‘§ profession, regular practice Except of his in treatment. furnish, any person prescribe, administer, or for a narcotic to shall pathology his for a or condition under treatment other than who narcotic ” addiction, except provided in this division.’ During this time a man named Thomas came to the front door and spoke Grimes went outside and with him. Mantler testified Thomas was a narcotic Angeles, addict Los but there was no evidence that the doctor was aware of that fact or even appearance knew of days of Thomas. Ten later Mantler returned. He and the friendly doctor visited manner and in the conversation Mantler said he had been lucky poker game. in an unlawful He said his wife was not ‘doing good,’ so she had run out of medicine but he something emergency. had for an if doctor asked his gave wife trouble when she was short of medicine and Mantler very nearly up chimney said: ‘She ran me of the house on prescription book, occasions.’ The doctor on wrote his wrong her, ‘T.B.’ and said: else is with I ‘What have for gotten you ‘Well, what said the last time’ and Mantler said: couple years ago.’ she had an hysterectomy old paid days $10. the doctor later he went to the About ten again, days later, doctor on another when the visit ten *11 him getting along, doctor asked how Mantler told he was things ‘pretty tough.’ were Although Mantler testified that on the first occasion he did not tell the doctor what was wrong wife, appeared with his from his cross examination that he had stated that she had ‘T.B.’ During the several friendly visits the conversations were on a basis and the ‘Roy.’ Upon doctor addressed Mantler as the second visit him he asked Mantler to let ‘ upon know when he could call ’, home, upon Julia Bates at her different occasions inquired getting how she was they on. On one occasion game world series television, upon watched a ball' on the occasion of the second visit offered Mantler the doctor $20, but he refused to more than After $10. take prescription inspectors it was known to obtained first other in the enforcement office that he had obtained it false representations to the doctor that ‘Julia Bates’ was his wife drugs. Upon in and was need of Mantler’s fourth visit inspectors defendant was arrested Mantler and three other prescription who seized all his books records. only question requires
“The which may answer stated as follows: When a narcotic officer plan conceives a entrap physician a into a violation law, has himself physician introduced under an name, repre- assumed he has a sick using sents that wife who is Methadon or (trade names), Demerol makes bringing excuses her the doctor’s office when told he so, ignores should do a her,
request and obtains by the doctor that he call wife, his given as that of prescriptions in a fictitious name violation may lawfully doctor be convicted of for one not under prescribing narcotic law which forbids of Dr. Brad- question case describes the his treatment? The negative. dock and our answer is a scarcely necessary agent “It to remark that won doctor, calling ‘Boy’ the confidence who was soon making friendly inquiries concerning supposed wife. appeared wife, He as a man who was burdened with a sick generously provided drugs for whom he for the relief distress, of her was unable to when she visit the doctor. So prescriptions issued the the doctor for one not under his consequence treatment, and as a stands convicted four agent felony. But let us see what the did: He counts of inducing crime; plan of the doctor to commit a conceived the prescrip doctor to issue false and fraudulent persuaded he accessory (§ 11165)2; to four misdemeanors tions and became representations, felony under made false and fraudulent a false for the 111703; gave a false name and address section en This was felony under section 11170.54. pretended wife, in searching not found a case In all we have trapment. our deception. We victim of physician was made the such law-abiding presumably say this is the first time cannot representations of a law by false physician has been induced although unlawfully, officerto issue a enforcement one. This satisfied to discover another we have been unable necessary been found methods have not only us not that such narcotics, prescribing profession policing the medical *12 deception in the fraud and employment of but also that 2“ prescription. person fictitious False or No shall issue ‘§11165. ” any respect.’ prescription in is false or fictitious a 3“ prohibited. (1) person statements Acts and No shall ‘§11170. procure narcotics, attempt attempt procure or to obtain or or to obtain narcotics, (a) by fraud, deceit, of or the administration subterfuge; (b) misrepresentation, or or ma concealment of a fact. terial “ ‘ (2) person any prescription, in No shall make false statement record, required by order, report, this division. or ‘“ (3) shall, or purpose obtaining narcotics, person falsely for the of No represent be, of, manufacturer, himself to assume the title saler, person. whole- pharmacist, physician, dentist, veterinarian, or other authorized “ ‘ any forged (4) package No shall affix false or label or to ” containing receptacle narcotics.’ ‘4“ person shall, and address. No in 11170.5. False name connection § prescribing, furnishing, administering, dispensing with the narcotic, give of ” name or false address.’ a false entrapment physicians very generally prop- has been erly scorned. is, course,
“There much more involved here than the simple question whether Dr. Braddoek violated the He law. mute, stood right, as was his and thus admitted truth testimony. of Mantler’s It is not because of a claim of innocence that he relies the defense of entrapment, policy but because it is punish the law not to violations initiated and purpose others for the bringing induced prosecution. about a uphold “If we were to the conviction of Dr. Braddoek it approving would mean that we were the unlawful enforce- giving ment of the law and hand free to law enforcement only means, officers to not deceitful means, use but unlawful physicians, well, to entice and others as to violate the law. consistently temporize
The courts have refused to with such fraud, statutory and direct violation of deceit law as the agent provocateur, discloses. The despised record here so given language in that he has been no name our and can place society, in claim no our had best have the door shut against appears. given whenever he Gur courts have encouragement practices, hateful to his no foothold in no from our field of law which to extend his enforcement con- taminating influence. States,
“It was said
Sorrells United
mission one not theretofore through indictment, obtaining purpose the of a victim sole revolting of so a sentence, the consummation conviction any self-respecting permitted by tribunal. plan ought not to be offense is one at common Equally true is this whether the policy Public forbids merely law or of a creature statute. policy of decency. enforcement this such sacrifice of The alleged entrap upon court, every in instance where the calls brought notice, to ascertain the to its ment of a defendant administration of facts, appraise effect the to their respect to the further justice, and to make such order with require. prosecution the . . . of the cause as circumstances “ rests, rather, a fundamental rule ‘The doctrine bn and the public policy. protection of own functions The its temple belongs only preservation purity of own to of the its province court. It is the of the court and of the court the protect government prosti- the from alone to itself and such principles violation of tution of the criminal law. The the justice by entrapment unwary into crime should the of the be the no matter whom or at what dealt with court stage brought proceedings facts are to its attention. the Quite properly may discharge prisoner upon writ the quash corpus. Equally may habeas well it the indictment try plea powers in do not or entertain and bar. But its any stage case, entrapment, end there. Proof at requires prosecution, stop to direct court quashed, liberty. If indictment be and the set at defendant entrapment may in doubt as to issue of the facts it submit the jury may finding upon to a for advice. But whatever be power duty such act submission the and the remain with jury.’ the court and not with the policy of the courts to condemn settled been the “It has enforcement of the law. We shall repudiate unlawful many in cases. One only a few of the refer to procuring selling narcotic into entrapped was accused Circuit). A (Eighth States, 20 F.2d v. United is Cline promised but agent arrested an addict narcotic government addict, agent. ‘made a case’ him if he release drug, persuaded greatly in need of pretending to morphine for him. The to obtain a chauffeur friend induce chauffeur, paid morphine from the received friend morphine to the addict delivered when he $5 trial. jury convicted $5, arrested and exchange only one appeal evidence sustained on that the was held It *14 809 conclusion, namely, agent trap used the the addict to the defendant. Healy, (District Court,
“In United States v. 202 F. liquor Montana) unlawfully the accused sold to an Indian such, by by was known him to be who but who was used decoy. government judg- officers After conviction the aside, saying: ‘Though ment was set the court the seller has statute, passive violated he was instrument government, and his is a blameless for wrong which he cannot justly practice . . be convicted. . The cannot tolerated, be ’ procured and a conviction an offense so cannot stand.
“In
Co.,
United States
Eman Mfg.
(District
v.
having shipment, prosecuted made the held, was and it was ‘ stipulated on facts, public interests a sound policy the defendant should guilty be found not and dis- ’ charged.
“In United States v. Lynch,
983, (District
Court,
F.
York)
New
Military Intelligence
Department
one
caused
Fancher
money
to demand
for his
in the
influence
award of
government
contract and
money
when
was offered
himto
Lynch
the defendant
prosecuted
the latter was arrested and
offering
a bribe. The
said
court
that under such circum-
government
stances the
estopped
was
from prosecuting on
ground
that it caused and
complaint
created that of which
acquittal
made. A verdict of
was directed.
Echols,
(District
The defendant had guilty. upheld plead offered to court the defense (p. 863) entrapment and stated as follows : ‘In what here persons no yield there is intention to excuse who stated to hamper temptation, or to or limit acts of officers of the detecting by any device; crime means law but the zeal vigorous ought not be so to detect crime to as to induce officers procure originate very the commission of the offenses enjoined prevent. they are No faithful officer of any hampered, nor the law will be will criminal aided, disregard, rule. Its however, this may, observance subject persecution likely will, and conviction weak *15 810 temptation; find hard to resist it spineless persons, who
and on the through zeal for conviction the government, and the may means of the ruin arresting officer, become the part of the protection. safeguard and of their citizens, instead of its unimpeachable the result at once establishes possible a Such enunciated, re- policy public here rule of wisdom of the offered guilty, the plea which defendant quires that of the refused, dismissed, the case which make, court the accordingly now is done.’ Court, (District 22 979 Mathues, F.2d States “United v. applied similar case stated Pennslyvania), a entrapment. rule the of ordinary is one People case contend that
“The from willing buyer narcotics a of appearing officer of an anyone offering himself as a willing to sell to is one who legion, this conviction are the of sort are customer. Cases Makovsky, exception. (People rare v. reversals the rule and 366, ; People Lindsey, 91 Cal. P.2d v. 3 369 [44 536] Cal.2d Gallagher, 107 People 914, ; P.2d v. App.2d 916 1114] [205 cf. States, supra, 20 v. Cal.App. ; 425 P. Cline United 504] [290 peddle willing is is because one who 494.) F.2d But this no looking for necessarily heart, a criminal at narcotics money expects other to break the law than inducement such inescapable inference in cases to receive. It is an of violate the law existed and that the act willingness Persuasion to make sale does was self induced. violation entrapment of unless with the vice not taint transaction an act that would otherwise not the commission of induces (People Makovsky, supra, 3 Cal.2d been committed. v. have States, (Eighth F. 35 366, 370; v. United 273 Cir- Butts cf. Gallagher, supra, Cal.App. 425.) 107 If 1921); People cuit v. time, for occupy such case it would but little our this were energetic legiti- encourage every applaud and we would stamp the fearful and detestable traffic mate effort to out in narcotics. (C.C.A. 9), 60
“In United States F. Sam Yick [153 may ‘While it be true 96], p. 65, the court stated: C.C.A. at criminal aiding in the commission of one that the mere agent government preclude does not officer act yet committing crime, party where conviction party the crime to commit of the law have incited the officers consummation, will law him on to its charged and lured is, course, conceded guilty.’ It a verdict not authorize plan Dr. Braddock to induce Mantler conceived that officer
tH *16 remaining question to commit a The whether, crime. the language case, of the Sam Yick officer the ‘lured him on to its consummation,’ and we shall see from a discussion of the undisputed evidence Dr. Braddock that was ‘lured on’ from finish. start to ‘‘ question reasonably here is whether it could have been inferred from the facts evidence that Dr. Braddock was anyone willing prescriptions willing to for pay write to price, persuaded and that he was induced and not to write by representations them the conclusions, the officer. Such opinion, nothing in our would have been based on more than up suspicion. kept deception Nothing his last. the upon representations. occurred to his cast doubt The doctor asked to see ‘Julia Bates’ his office and at offered to call upon her her home, at but Mantler succeeded in persuading brought him that she could be to the office avoided suggestion upon the that the doctor her. call It was not shown that Dr. Braddock had before a prescription ever issued by him, for a who was not under treatment or had the otherwise violated narcotic law. Mantler no made effort to obtain a for evidently himself. He believed deception necessary played would and he his straight role through. agent through He was the of the state whom the permitted state should escape It not be the state acted. responsibility agent by merely of its saying the acts that falsely although spoke he he believed, was not and that the by doctor was not deceived his falsehoods doing into some- thing Every he would not otherwise have done. reasonable contrary. inference is to the That the doctor believed the representations by evidenced the fact upon was that he acted they them. That understood Mantler were to be the effec- accomplishing purpose tive means of his was evidenced persisted improved fact that he in them them to point arousing compassion. If doctor’s there was cupidity, an intermixture of legal this would not alter the aspects pretense There the case. is no that defendant by purely motives, was moved charitable he that did not violating law, he know was but this does not militate against entrapment. the defense of Defendant admitted to the officers, arrest, immediately after his he had written the prescriptions he money, because needed the but this means only easily persuaded. was the more The defense of entrapment is not be denied needy. They to the weak and very of persuasion
are ones who become the victims protection. who deceit, and deserve only persuaded that he “Defendant claims was to violate supports his to the ex- law and that the evidence claim any answering clusion of other reasonable conclusion. In this People testimony attention to contention call previously questioned Mantler that had defendant over the addicts, telephone prescribing and accused Also, mention is accusation defendant resented. made of were fact that Mantler testified that Grimes and Thomas although addicts, had knowl- not shown that defendant *17 edge that even the man Thomas. To of fact or knew that give serving testimony such self and serious consideration to incriminating vaguely suspicious circumstances as evidence of only magnify the error the conviction. The mere would any Thomas not of evidence presence of Grimes and sort they ‘planted’ If a law violator. were that defendant was were, they Mantler, they no doubt could have been there they if would have that defendant called as witnesses testified unlawfully. It is be prescribed had for them therefore to they testify to as to their presumed that had been called any, testimony defendants, if their would have relations with reject People. utterly We therefore the been adverse to the presumption court argument against this the could that as incriminating men or even regard presence the of these as an Moreover, had the officers seized suspicious circumstance. None was narcotic records. possession and of defendant’s had in in assertion of Mantler the tele- evidence. The offered prescribing been had phone conversation that defendant made no admission. Defendant addicts was not evidence. required copies books, were to contain His which (Health years & within Saf. prescriptions of all issued two the(cid:127) It was §11166.10), were the hands of officers. Code, in they produced in court they if had been presumed to be that prosecu- anything to the favorable would not have disclosed tion. significance that from the fact takes on added
“This case place great reliance day juries in must present courts and the duty charged with the of officers who are upon testimony of common occurrence enforcing is of the narcotic laws. It upon appeal, had, and are affirmed on that convictions are officers, in face even of such testimony the uncorroborated con- do doubt that strong by We denials accused. veracity generally of the officers fidence and motives deserved, well and deem it somewhat more than unfortunate any stoop officer should to falsehood and deceit in order bring about the commission of a purpose crime obtaining a shocking It is conviction. to learn that an officer depends the law worth high whose so regard much regard for the and a just rights truth for the of citizens plan should conceive carry involving out a so much duplicity, and even more so that should be assisted other deception. officers who were aware of the That narcotic laws vigorously systematically are enforced we from know the multitudes of arrests that are made and the had, convictions that are but it is better that some offenders go unpunished should than that overzealous officers should permitted indulge practices which would tend to agencies demoralize law impair enforcement confidence and people trust and the courts necessary agencies it is possess for such in order to be most effective. ‘‘ clearly This is a case in which there was entire absence evidence reasonable inference accused would *18 have violated law had he been by induced to do so representations persuasion false of a law enforcement officer. We do any not believe that has conviction been sus- appeal upon tained on such record. conclusion, quote
“In we from v. States, Woo Wai United 412, 223 F. 415 C.C.A. : ‘Some the courts have [137 604] gone far in sustaining convictions induced de- crimes tectives and state notably officers. is This so deci- People sion in Mills, v. 786, N.Y. 274 N.E. 67 L.R.A. [70 But it said, by way is to be distinguishing 131]. such cases from bar, the case at in all of those cases the criminal intention to origin commit the offense its had in the mind of the defendant.’
“If the conviction of Dr. Braddock should be affirmed it only would be case to be found the books in which a upon undisputed conviction was allowed to stand evidence an officer the law conceived crime, commission of a misrepresentation, used deceit unlawful methods to induce commission, its and when all the evidence and the reasonable inferences were that but for the machinations of the officer the unlawful act would not have been committed. unnecessary
“It question to consider of variance be- tween information proof. and ’’
‘‘ denying a new trial are reversed. order judgment opinion I would foregoing For the reasons stated in judgment. reverse the J.,
Schauer, concurred. rehearing January was denied Appellant’s petition opinion Schauer, J., were J., 1954. 14, Carter, granted. petition that the should be 22, 5461. Bank. Dec. No. In 1953.] [Crim. WAYNE, WILLARD Respondent, PEOPLE,
THE Appellant.