Concurring and Dissenting. — I would affirm the judgment of conviction on the count of the information wherein defendant was accused of giving away a narcotic in violation of Health and Safety Code, section 11500, but would reverse the judgment wherein the defendant was charged with giving a bribe to a deputy sheriff (Pen. Code, § 67).
I am satisfied that the factual background surrounding the charge of offering a bribe to Deputy Sheriff Nichols is replete with evidentiary facts which bring it within the rule announced by this court in People v. Makovsky, 3 Cal.2d 366, 369 [44 P.2d 536] and the other eases relied upon in the majority opinion, and in which cases we find unequivocal denunciation of officers of the law inducing a person to commit a crime which, without such inducement, he would not have committed. True, the law does not frown upon the entrap*52ment of a criminal and, where an accused has a preexisting criminal intent, the law permits his solicitation by a decoy and, if the accused succumbs to the opportunity offered him by the decoy, there is no inference of unlawful entrapment. However in the case now engaging our attention, the evidence points unerringly to the conclusion that the proposal of a bribe was conceived in the mind of the law enforcement officer whose conduct and inducement lured defendant into a criminal act. As was stated in People v. Makovsky, supra, 3 Cal.2d 366, 369, “When an officer induces a person to commit a crime which he would not have committed without such inducement, the law will not punish the person so lured into the crime. [Citations.] . . . The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite and create crime for the sole purpose of prosecuting and punishing it.” That is exactly what occurred in the instant case.
It should be remembered that notwithstanding what occurred at the General Hospital, defendant was not arrested but was permitted to depart. Now, who arranged for the next meeting? The answer is clear — Deputy Sheriff Nichols. The record reveals that after the latter returned to the sheriff’s office and talked with a superior officer, Deputy Nichols attempted to contact the defendant by telephone and, being unsuccessful, left word for the latter to contact the deputy sheriff. This defendant did, whereupon Officer Nichols asked defendant if the latter would like to talk with him. Defendant acquiesced and the deputy sheriff suggested a restaurant in the Civic Center of Los Angeles for such meeting. Upon the assurance that the proposed meeting was not for the purpose of arresting him, defendant agreed to keep the appointment. To make the occasion of the meeting more friendly, Officer Nichols bought the defendant a drink. After some conversation, as set out in the majority opinion concerning the content of the pill allegedly delivered by defendant at the General Hospital, in whose mind did the idea and suggestion of a bribe arise? Let the record speak for itself. As shown in the majority opinion, Deputy Sheriff Nichols testified, “At this point I asked him [defendant] what year his car was. He stated it was a 1957. I stated, ‘It sure is a beautiful automobile. ’ To this defendant replied, ‘ I sure would like to see you driving it’.” The majority opinion holds that this statement constituted the first suggestion of a bribe. I am inclined to the view it was rather an answer to the sug*53gestión of a bribe by the officer. The facts and circumstances surrounding the bribery phase of this case are fairly set out in the majority opinion and it is unnecessary to here repeat them. Suffice it to say that the evidence shows that the original criminal design — so far as the crime of bribery is concerned — originated in the mind of the officer and his superior. We are not here concerned with a case wherein one is engaged in the business of selling contraband goods such as narcotics and by means of a decoy is afforded an opportunity to ply his trade. In such cases the use of a decoy to afford the suspect an opportunity to engage in his illegal operations rightly does not amount to unlawful entrapment. The crucial question before us is in whose mind did the intent to commit the crime of bribery originate?
As I view the evidence it points unerringly to the conclusion that as a matter of law defendant had no intent to bribe Officer Nichols but was solicited and induced to do so by the latter, thereby bringing the instant case squarely within the rule of unlawful entrapment as a matter of law.
While a departure from those seasoned and long-established rules of procedure in criminal cases may well result in justice for the particular defendant before the bar, such practice is dangerous to the community and may well lead to opening the door for conviction of the innocent. Respect for the law can never be inspired by its lawless enforcement.
Appellant’s petition for a rehearing was denied January 10,1961. White, J., was of the opinion that the petition should be granted.