dissenting. From a reading of Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989), it appears imminent that the Arkansas Supreme Court will elect to adopt the rule stated by the United States Supreme Court in Mathews v. United States, 485 U.S. 58 (1988), i.e., that a defendant may be entitled to an instruction on the defense of entrapment even if he denies one or more elements of the offense. In the case at bar it is unnecessary for us to decide whether to anticipate that change because even under prior law, on these facts, an instruction on entrapment should have been given. It is clear that a defendant need not plead guilty in order to obtain the instruction. See Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970); Rodriguez v. United States, 227 F.2d 912 (5th Cir. 1955). The court in Brown did quote Rodriguez for the proposition that the defense on entrapment is unavailable to a defendant who denies the acts charged. Brown, 248 at 564. In Brown the defendant denied any connection with, or knowledge of, the drugs. In Robinson v. State, 255 Ark. 893, 503 S.W.2d 883 (1974), the defendant’s only witness testified that the material the defendant had given to the police officer was not cocaine, but merely aspirin.
The case at bar is substantially different. Appellant admitted giving marijuana to the confidential informant and admitted receiving money from him. In my view this was a sufficient admission of the “acts” charged to entitle the appellant to a jury instruction on entrapment, despite her contention that the money was not received in exchange for the marijuana. A judicial confession is not prerequisite to the giving of the instruction.
Finally, I agree with Justice Newbern’s view that the giving of the instruction here could do no harm. See Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989) (Newbern, J., concurring).
For these reasons, I respectfully dissent.
Rogers, J., joins in this dissent.