I must respectfully dissent from the majority opinion because I am convinced, from an examination of the record, that prejudicial error intervened whereby defendant was prevented from having a fair trial on his plea of not guilty. *Page 433
The majority opinion quotes five pages or more of typewritten testimony, entirely out of context, which describes the events leading to the purchase by the defendant of boneset tea and Dormin sleeping tablets which have absolutely no relevancy to any count of the indictment. As will be observed later in this opinion, such purchases were subject to the fair and logical inference from all the evidence that they were made to resist the constant plaguing by the police employee endeavoring to have the defendant violate the law against dealing in narcotics. The facts in this case are most unusual and require an objective analysis.
The defendant admitted that he had been a user of heroin but had stopped using it a year or more before the time of the trial. He also admitted having used marijuana, but said he had stopped using it some six to eight months prior to the time of the trial which commenced June 13th and ended June 18, 1958.
The evidence shows that all the transactions referred to in the indictment concerned one Lloyd Williams, Jr., who was employed as a special agent by the Columbus Police Department. Williams and the defendant had been acquainted since childhood, having attended school together. According to the testimony of the defendant, Williams began to make it a practice to seek out the company of the defendant, meeting him in the Idle-a-While Bar and other places where they played shuffleboard, drank and played pool together.
According to the testimony of the defendant, Williams approached him as though he, Williams, was a user of narcotics and asked defendant if he knew where he could get heroin and marijuana. It may be observed at this point that one of defendant's witnesses testified that Williams actually was a user of narcotics. Good's testimony shows that he told Williams that he did not know any place where narcotics could be had. However, he put Williams off on one occasion by accepting the sum of $10, promising to purchase marijuana for him. Instead, he went to a drugstore and purchased some boneset tea, a harmless substance which can be purchased in a drugstore without a prescription, and which, of course, is not a narcotic. The boneset tea was sold to Good in a bottle, the contents of which he placed in a paper towel and delivered to Williams. Williams *Page 434 took the contents of the package to the Columbus Police Department, where, upon examination, they discovered that it was not a narcotic and so informed Williams. Thereupon, Williams set out to find Good, having in his possession a .38 caliber police special gun. The next day, on his way to the Idle-a-While Bar, Good saw Williams with two other men standing near an automobile. As Good started to cross the street to go to the poolroom, Williams called him over to the automobile. Williams then told Good that he had sold him boneset tea instead of marijuana and ordered Good to get in the car with him. It was then that Good saw that Williams had the police gun and when Williams started to go around to the driver's side Good pretended that he was going to get into the passenger's side, but, as he placed his hand on the door handle, he began to run. He ran across the street into an alley, with Williams in close pursuit. When Williams was about six feet from Good, he pointed the police gun at him and ordered him to stop or he would shoot him. His words were "Stop or I will blow your brains out." Good then stopped and said "Well, you don't have to shoot me" and promised to return the money which he had taken, ostensibly to buy marijuana. The most money that Good could give Williams at that time was $3, but he explained that he would get the rest of the money for him. However, Williams stated that he did not care about the money, but that what he wanted instead was some marijuana, to which Good replied that he did not have any. Williams then said, "Well, you find out who has some marijuana and get it or just find out who has some marijuana."
The record shows that Williams kept after Good to get him marijuana but that Good finally, upon the constant urgings by Williams, told him that he had heard of a person by the name of McCants who had some marijuana. Williams kept insisting that he did not want his money back but wanted marijuana instead.
Upon another occasion, when Williams asked Good about some heroin, he told him he did not have any but was requested by Williams to go and see somebody about getting some, which Good did. Good put Williams off again and, in company with one other person, went to a drugstore and bought some Dormin *Page 435 sleeping tablets or capsules, wrapped them up and gave them to Williams for $20. Williams was again informed by the police department that the substance was not heroin or any other kind of narcotic but Dormin sleeping tablets which could be purchased at a drugstore without a prescription. Williams then insisted upon Good going with him to see McCants and when he said he did not have any money, Williams said "Don't worry about that, get on in the car, I got the money." Again Williams put his hand in his pocket, the one with the revolver, and Good got in the car because, as he testified, he was in fear of Williams because of his threats to shoot him.
Good's testimony shows throughout that he had no intention of getting or purchasing marijuana or heroin for Williams but that he constantly refused and put him off by buying the boneset tea and the Dormin sleeping tablets. The entire evidence produced by the defendant shows that Williams was the aggressor, attempting first to lure and entice and then entrap Good into committing a violation, and, when this failed, attempting to enforce his demands by the threat of the police pistol. There is corroboration of this testimony by one Esbe Owens, Jr., also a schoolmate of the other two, who testified to seeing Williams chase Good with the police gun and hearing Williams say to Good, "Take another move and I will shoot you," and that he heard Williams say to Good "He would let him make up the money in some other way." Good was, therefore, placed in fear of Williams, and it was under these circumstances that he accompanied Williams to the home of one Sam McCants. This incident was conducted in such a manner as to tend to incriminate Good. Williams insisted upon letting Good act as the intermediary, placing the money in the hands of Good, and having Good pass the money to McCants and then letting McCants hand the package, purporting to contain marijuana, to Good, who then placed it in the hands of Williams.
There is no doubt from the testimony of Good concerning this transaction that the amount of money which Williams handed to Good was immediately handed to McCants. Therefore, it is evident that Good was not profiting from that transaction but was merely acting as an intermediary for Williams upon Williams' insistence that he do so. As before indicated, *Page 436 Good claims he was acting in fear of Williams who had threatened him with the police gun whenever Good resisted Williams' demands that he procure marijuana for him. A fair inference from the evidence presented by Good was such that the urging and coercion was strong enough to shift the origination of the crime from the mind of Good to that of Williams because of the ever-present threat of bodily harm by use of the police pistol. The jury could readily find, if they believed the testimony of Good and his corroborating witness, that Good was in grave danger of bodily harm, and that the threat remained constant at the time of the incidents referred to in the evidence.
There can be no doubt that Williams was working for the Columbus Police Department, because when Good sought to put off the threats and demands of Williams by selling to him the harmless boneset tea and Dormin sleeping tablets they were examined by the police department, and Williams was informed that he had been deceived by Good concerning the sale of these substances, which are not in the category of narcotics.
Esbe Owens, Jr., in corroboration of the testimony of Good, testified to the effect that Williams exhibited to him the boneset tea and stated that he got it from Ronald Good, for which he gave him $20 and that he was looking for him. This, according to Owens' testimony, was witnessed by him on the day that Good was coming down the street and Williams chased him with the pistol as hereinbefore set forth.
Considering the testimony of Good and Owens together, the record indicates that Good told Williams that he could make up the money in some other way. According to Good's testimony, the way in which Williams insisted it be made up was to bring him to someone from whom he could purchase marijuana, which resulted in Good taking him to see Sam McCants.
This evidence, presented by Good with corroboration, disclosed a situation in which there was an affirmative defense of entrapment and coercion. Thus, according to Good's testimony, the criminal intent originated in the minds of the entrappers, in this case, Williams, the agent of the Columbus Police Department plus the officers and members of such department, for whom he was working.
It may be argued that Good deceived Williams by purchasing *Page 437 boneset tea and Dormin sleeping tablets. However, he was not indicted for obtaining money under false pretenses but for a violation of laws against dealing in narcotics. If in these matters he had sold narcotics to Williams, such as heroin or marijuana, instead of boneset tea and sleeping tablets, he would still be entitled to show affirmatively that his actions were caused by the entrapment by Williams or resulted from coercion by the use of a lethal weapon.
Of the nine assignments of error, the most important, in the opinion of the writer, involves the refusal of the court to charge on the question of entrapment. Counsel had requested two special charges as follows:
"(1) I charge you that if you find from the evidence that there was a sale or a possession for sale of a narcotic and you find that the criminal intent to violate the law as to the possession for sale or sale, if there be such, originated in the mind of Lloyd Williams or the prosecuting authority and the accused was lured into the commission of an offense in order to prosecute him therefor, you shall return a verdict of not guilty.
"(2) I charge you that if you find that the defendant was coerced or urged on by Lloyd Williams or the prosecuting authority to commit a crime and you find that the circumstances of the urging and/or coercion are strong enough to shift the origination of the crime from the mind of the defendant to that of the agent, Williams, you shall return a verdict of not guilty."
It is not error for the trial court to refuse to give special charges before argument in a criminal case although it is error prejudicial to the rights of the defendant if the court refuses to give the substance of such charges in its general charge, if requested so to do, when the issue is raised by the evidence presented by the defendant, and if the charges are correct.
In State v. Barron, 170 Ohio St. 267, 164 N.E.2d 409, it was so held, as set forth in the syllabus, as follows:
"Under Section 2945.10 (E), Revised Code, it is not mandatory upon a trial court to give any instructions to the jury in a criminal case before argument, but, if requested special instructions, reduced to writing, are correct, pertinent and timely presented, they must be included, at least in substance, in the general charge." *Page 438
However, the court refused to give the substance of the charges concerning entrapment by trickery and coercion in its general charge upon request to do so, although the court in its comment stated that there had been evidence of entrapment.
It has been held that entrapment is an affirmative defense and that, where it is raised by the evidence, it is the duty of the court to instruct the jury on the subject. In the instant case, defendant's evidence made out a strong case for entrapment and coercion by the use of the police special revolver by the employee of the police department, Williams, with which he threatened the defendant to obtain his compliance with his demands to procure the marijuana for him.
The subject of entrapment is well stated in 15 Ohio Jurisprudence (2d), 429, Section 245, which reads, in part, as follows:
"The word `entrapment' is sometimes used loosely to mean `trapped,' `caught,' `apprehended,' or to mean that evidence was obtained of the commission of crime or of criminal practices by artifice. `Entrapment,' as that word is used in the consideration of defenses to criminal prosecution, is improper inducement to commit a crime. The gist of the entrapment is that the entrapper instigated the offense and then incited the accused to commit it for the purpose of prosecution. Where the criminal intent originates in the mind of the entrapping person, and the accused is lured into the commission of the offense in order to prosecute him therefor, the general rule is that no conviction may be had, although the criminality of the act is not affected by any question of consent. If the defendant is urged on by a state agent to commit a crime, and the circumstances of the urging are strong enough to shift the origination of the crime from the mind of the defendant to that of the agent, the defense of entrapment is available to the defendant. When an officer has no grounds for suspicion and induces a person to commit a crime simply for the purpose of making an arrest, his conduct constitutes entrapment."
For supporting cases and authorities, see Morei v. UnitedStates, 127 F.2d 827; 18 A. L. R., 146; 66 A. L. R., 478; 86 A. L. R., 263; 33 A. L. R. (2d), 883; State v. Griffith (C. P.), 27 Ohio Opinions, 307, 13 Ohio Supp., 53; State v. Langdon, 67 Ohio Law Abs., 187. *Page 439
In the instant case, the court not only refused to charge on the question of entrapment and coercion but also refused to permit counsel for the defendant to argue these questions to the jury.
In view of the proposition of law that entrapment by allurement and coercion are affirmative defenses, the court committed prejudicial error in not instructing the jury on these subjects upon request and in not permitting counsel to argue to the jury on these subjects. The state in this case cannot claim disassociation from the work of its informer and agent, it being quite clear that the informer, Williams, was acting under instructions of the police department although its members may not have known about every detail of his conduct toward the defendant.
A late and important case on this subject is Sherman v.United States, 356 U.S. 369, 2 L. Ed. (2d), 848,78 S. Ct., 819, decided May 19, 1958. In that case, the Supreme Court reversed a judgment of the United States Court of Appeals of the Second Circuit and held that entrapment was established as a matter of law, and petitioner's conviction was reversed. It was there stated in paragraph (a) of the syllabus:
"(a) Entrapment occurs only when the criminal conduct was `the product of the creative activity' of law-enforcement officials."
Paragraph (e) of the syllabus states:
"(e) The government cannot make such use of an informer and then claim disassociation through ignorance of the way in which he operated."
The court stated in paragraph (g) of the syllabus that it still adhered to the doctrine of the court's opinion inSorrells v. United States, 287 U.S. 435, 77 L. Ed., 413,53 S. Ct., 210, 86 A. L. R., 249. In the Sorrells case the court said, as appears by paragraph five of the syllabus:
"5. Entrapment is available as a defense under a plea of not guilty; it need not be set up by a special plea in bar."
And in paragraph six of the syllabus it is stated:
"6. Evidence of entrapment in this case held such that it should have been submitted to the jury."
In the Sorrells case, the court reversed the Circuit Court of *Page 440 Appeals of the Fourth Circuit, and, although it was a case involving the National Prohibition Act, the principles therein set forth were reaffirmed in Sherman v. United States, supra. In the Sherman case, there is an exhaustive review of authorities in the Sorrells case. The Sherman case, like the instant case, involved the subject of narcotics.
The evidence in this case, as presented by the defense, does not present a case in which the criminal intent originated in the mind of the accused or where the accused was merely furnished the opportunity to violate the law. Just the converse is true. The evidence of defendant here presented is much stronger than a mere case of entrapment by luring or inducing the defendant to commit a crime. Here the evidence, as produced by the defendant, shows that the agent of the police department time and again threatened the defendant with the use of the police gun if he did not comply with his demands for narcotics. Under such circumstances, the defendant clearly was entitled to the requested charges of entrapment by allurement and coercion according to the substance of the requested charges. These were questions for the jury, under proper instructions from the court, according to all the case law on this subject, both state and federal. Refusal of the court to instruct on these subjects and refusal to permit counsel to argue on them constituted prejudicial error for which the cause should be reversed and remanded for further proceedings according to law.
The majority opinion states that the defendant categorically denied all the charges set out in the indictment upon which he was found guilty. A careful reading of the record shows that the defendant related the facts incident to the charges of sale and possession for sale of marijuana in each instance, and the facts, as related by him, do not constitute a denial of what happened and cannot be considered as inconsistent with his affirmative defense of entrapment by allurement and coercion. The gist of the majority opinion would seem to indicate that it was necessary for the defendant to confess that what he did was a crime, whereas, in law and fact, the elements of entrapment by allurement and coercion are entirely consistent with his narration of the facts. Consequently, this contention in the majority opinion is, in the opinion of this writer, without merit. If the *Page 441 defendant had denied the facts, then there would be some merit to this contention as set forth in the majority opinion.
The majority opinion also quotes, at great length, from an article in 28 Fordham Law Review (1959-1960), 399, entitled, The Defense of Entrapment and Related Problems in Criminal Prosecution. This is an excellent article but it has no bearing upon the issues of this case. Law reviews serve a very useful purpose but they are not authoritative. As between articles written in law reviews and authoritative decisions of the Supreme Court of Ohio and the Supreme Court of the United States, the latter must take precedence.
Much space is given in the majority opinion to the evils of narcotic traffic, with which the writer is in complete accord, but which are irrelevant to the issues of this case.
Proceeding now to assignment of error number two, this assignment of error should be sustained for the reason that the court erred in the admission of certain photographs over the objections of defendant, which exhibits were prejudicial to the rights of the defendant. These photographs, Exhibits 5, 6, 7, and 8, are pictures of the police cars which were used to observe Good selling Dormin tablets to Williams. It is freely admitted that the defendant sold Williams some Dormin sleeping tablets under the pretense of their being heroin. Inasmuch as Dormin sleeping tablets can be purchased in a drugstore without a prescription, no violation of the narcotics law was involved nor was there any count in the indictment therefor.
The court in a statement said that he realized that the photographs pertained to a date other than the dates referred to in the indictment but that there was a possible course ofconduct or practice before or after the incident, and that it was on this basis that the court admitted these photographs into evidence. This evidence could not possibly come under the statute relating to similar offenses, nor could the observance by the police of the sale of simple Dormin sleeping tablets to the police agent have any materiality or relevance to any offense charged in the indictment.
Any course of conduct of the police before or after the incident of the sale of Dormin tablets could not possibly be binding upon the defendant. To permit such evidence to go to the *Page 442 jury, which did not involve any charge in the indictment, was highly prejudicial and could have no other effect than to prejudice the minds of the jury against the defendant.
There was error also in admitting into evidence envelopes on which Williams had made various notations, all concerning the contents, the names of the persons he claimed to have gotten them from, the time, the dates and what he did with them. Such writings should have been stricken from the envelopes before permitting them to go to the jury. Simply instructing the jury to disregard them was not sufficient to cure the error in view of all the other facts and circumstances of the case.
I agree with the majority opinion that none of the other assignments of error can be sustained on the ground that they were prejudicial to the rights of the defendant.
For the reasons set forth herein at length, it is my view that the judgment of the Court of Common Pleas should be reversed and the cause remanded for further proceedings according to law.
HURD, P. J., KOVACHY and SKEEL, JJ., of the Eighth Appellate District, sitting by designation in the Tenth Appellate District. *Page 443