(dissenting).
Regretfully I noté my dissent. I think there was serious and basic error in the refusal of the trial judge to submit the question of entrapment to the jury. To sanction that refusal would be to depart from the rule announced by our highest court in a number of recent cases; to depart also from the rule of public policy clearly announced in the federal courts and specifically to ignore the admonition of the United States Court of Appeals for this District “that courts are required to keep hands off the jury’s business.” Christie v. Callahan, 75 U.S.App.D.C. 133, 148, 124 F.2d 825, 840.
The judge’s charge to the jury is of supreme importance in a criminal case. It is the last and most authoritative word the jury hears. It should stand as defendant’s safeguard of fairness, impartiality and completeness. It must cover every defense made out by the evidence or reasonably deducible therefrom. Where there are several defenses there is no more justification for taking one defense from the jury than for directing a verdict of guilty on the whole case.
In this case, defendant asserted three principal defenses: (1) that the sales were made only on behalf of .his wife; (2) that they were made in good faith, and (3) that he was entrapped into- selling at a higher than legal-price.
He .was entitled to separate, specific instructions on each defense and to have the law concerning each carefully ex*566plained to the jury.1 And that, as our United States Court of Appeals has said, was his right whether he specifically requested it or not. Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522, citing Kreiner v. United States, 2 Cir., 11 F.2d 722.
To the same effect are a number of cases, including State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, 620, which held that defendant was entitled to instructions on the “law of the case” even though no specific instruction was offered at the trial. I think it but reasonable to hold that the principles just stated apply even more strongly to a special defense like that of entrapment which is distinct from the defense on the merits and is by way of avoidance.2
The majority cites no case — nor have I found one — holding a defendant not entitled to a separate instruction on entrapment, except where there was no evidence to support it. On the other hand the Federal and State cases are numerous which hold that when there is some evidence to support it, the defense of entrapment must be submitted to the jury. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249; Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143; Di Salvo v. United States, 8 Cir., 2 F.2d 222; Capuano v. United States, 1 Cir., 9 F.2d 41; Silk v. United States, 8 Cir., 16 F.2d 568; Jarl v. United States, 8 Cir., 19 F.2d 891; People v. McCord, 76 Mich. 200, 42 N.W. 1106; Koscak v. State, 160 Wis. 255, 152 N.W. 181; State v. McKeehan, 48 Idaho 112, 279 P. 616. The rule is clearly stated in Falden v. Commonwealth, 167 Va. 549, 189 S.E. 329, 332, as follows:
“If there be conflict in the evidence as to whether the criminal intent originated in the mind of the accused or was induced or incited 'by the officer, then the solution of the question should be submitted to the jury.”
In examining the evidence for this purpose we must be guided by the same rule which is applied in testing the sufficiency of evidence on a motion for a directed verdict. We are not to weigh it factually as a jury might do, but to determine whether it was “strong enough for us to allow the jury to consider it.” Christie v. Callahan, 75 U.S.App.D.C. 133, 124 F.2d 825, 826. This court has several times been at pains, even in civil cases,3 to point out — following Christie v. Callahan and the cases upon which it is based — that where there is any substantial evidence, however strong the denial, the decision must rest with the jury and not with the court. It is obvious that the rule applies even more strongly in criminal cases.
What then was the defendant’s showing on the defense of entrapment? Among other things there was the testimony of Mrs. Sherman that Miller, the O.P.A. officer, told her “Yes, go ahead and sell them” and “Sell them for what you are now getting, 7%fthat a little later she looked out front and saw Miller (seemingly noting license numbers of purchasers) ; that she walked out and asked him “What are you doing?” and he said, “Nothing.” She said, “What are you taking names and writing things down here for?” “If we are going to have any trouble I would rather take my potatoes and dump them, dump them out, because I am not looking for any trouble,” And he said, “No, I am not going to make you any trouble,” “but the next thing I knew * * * he had a warrant out.” (And this, in fact, Miller did. The sales took place on Friday, May 21st, around noon; and Miller swore out the warrant on the following Monday, May 24th.) They had stopped selling potatoes until he told them to “go ahead and sell for $7.50.” One *567Crabill, a disinterested witness, corroborated this testimony in part. In addition there was the testimony of the defendant himself that Miller, after making several telephone calls to O.P.A. headquarters, and after making certain computations, told them to “go ahead and sell for $7.50.” Defendant’s witnesses made quite a strong showing that Miller took complete charge of the situation, and was the dominant figure throughout the transactions.
It must be remembered that potatoes were not contraband, and that defendant had a perfect right to sell all the potatoes he pleased, provided he kept the selling price within the legal ceiling. The selling price was of course the crux of the case and the basis of the prosecution. And, according to defendant, he completely submitted to the advice, interpretation, and instructions of Miller as to price. The showing fully justified the claim of the defendant that he was induced or lured or even instructed, by Miller to sell for a price which later proved to be unlawful.
Did Miller know that $7.50 was an unlawful price? If so, why did he not so instruct the defendant or his wife, or both? What information did he get during that last telephone call to O.P.A. headquarters? What were the computations he made ? Did he tell Sherman the truth, or did he withhold official information for the express purpose of betraying him? These were all matters that the jury was entitled to have explained by the judge in an instruction on entrapment. A mere general instruction would not do; and yet, not even such an instruction appears in the record. Of course I am not discussing Miller’s denials because they are not involved on the question of granting or refusing the instruction. The question is whether there was any evidence upon which the prayer could have been based.
Can it be said that the evidence for the defense was incredible as a matter of law? Could the jury not reasonably have believed -that Miller was illegally tricking the defendant when he computed the figures with him? Might they not reasonably have felt that he was perpetrating a deception when he announced after his last phone call to headquarters that $7.50 was the legal ceiling price? Was there not ample evidence to support defendant’s version that Miller was busily preparing his criminal charges against the defendant while expressly disavowing any intention of “making trouble” for him? In short, that Miller was himself violating the law and that his purpose was to “incite to and create crime for the sole purpose of prosecuting and punishing it.” Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 213, 77 L.Ed. 413, 86 A.L.R. 249, quoting Judge Sanborn in Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143.
Looking at the whole evidence, we behold a very strange situation. There was no effort to hide the potatoes for sale in secret, later on. There was no effort to deceive the O.P.A. officer as to the selling price. The sales were not made furtively, but under the very eyes of the O.P.A. officer, after repeated discussions and computations with him and with his full knowledge and approval. The sales were made in broad daylight, — all of the 100-pound sales on the public sidewalk. Two of the sales were made to Metropolitan Police Officers in full uniform. It seems to me that this was either a case of brazen, al•most childish, defiance of the O.P.A. officer, or one of instigation, luring, deception, and entrapment by him. The defendant was entitled to have the jury say which it was. Taking that important issue from the jury resulted in a “chilling” of the defense, and was tantamount to a directed verdict against him. In my view it was clearly error.
State, etc., Ins. Co. v. York, 4 Cir., 104 F.2d 730; Cincinnati, N. O. & T. P. R. Co. v. Francis, 187 Ky. 703, 220 S.W. 739; Dowdall v. Gilmore Oil Co., 18 Cal.App.2d 1, 62 P.2d 1051; McKinney v. Carson, 35 Utah 180, 99 P. 660; Memphis St. R. Co. v. Newman, 108 Tenn. 666, 69 S.W. 269; Mentz v. Omaha, etc., Ry. Co., 103 Neb. 216, 170 N.W. 889, 173 N.W. 478; People v. Egan, 331 Ill. 489, 163 N.E. 357; People v. Gallagher, 107 Cal.App. 425, 290 P. 504; Rowell v. Town of Vershire, 62 Vt. 405, 19 A. 990, 8 L.R.A. 708; Stapleton v. State, 56 Tex.Cr.R. 422, 120 S.W. 866; State v. Manns, 48 W.Va. 480, 37 S.E. 613; State v. Robichaux, 165 La. 497, 115 So. 728.
Cf Morgan v. Commonwealth, 242 Ky. 116, 45 S.W.2d 850.
Washington National Insurance Co. v. Stanton, D.C.Mun.App., 31 A.2d 680; Lohse v. Coffey, D.C.Mun.App., 32 A.2d 258; Viner v. Friedman, D.C.Mun.App., 33 A.2d 631; Birchall v. Capital Transit Co., D.C.Mun.App., 34 A.2d 624; Wright v. Capital Transit Co., D.C.Mun.App., 35 A.2d 183.