(dissenting):
I dissent.
I believe it advisable to first call attention to the fact that the accused defended on the grounds of entrapment. I doubt there was an issue reasonably raised, but if I am wrong in that conclusion, it matters little, for the defense was submitted to the court-martial under instructions favorable to the accused. Therefore, in considering the error asserted, we need go no further than to ascertain whether there is sufficient evidence to sustain the finding that the accused was not entrapped. However, I suppose my associates conclude that the facts show entrapment as a matter of law and that the law officer erred in his submission of the issue.
I believe it further advisable to point out that in this case the accused was charged with both use and possession of marihuana arising out of the same continuous transaction. He was convicted on both offenses. The use did not involve a cigarette intended for delivery to the informer, and it is a fair inference that the finding of possession was not predicated solely on the cigarettes purchased for him. It is possible, but it seems a bit strange, that the accused would be entrapped into possessing cigarettes which he himself used, and he confessed to smoking two or three. But, be that as it may, I contend that there is no evidence to show entrapment. Moreover, if it is material to a decision in this case, I believe the record is sufficient to show that prior to this offense, Dooley, the undercover agent, had reasonable grounds to believe that the accused was trafficking in habit-forming drugs.
As I marshal the facts in the record, I find very little evidence to support some of the forceful condemnations of Dooley found in the Court’s opinion. While I do not champion the use of informers to detect crimes, we have not frowned on their use. See United States v Hawkins, 6 USCMA 135, 19 CMR 261, and United States v Gibson, 3 USCMA 746, 14 CMR 164. The underworld characters peddling dope pose a critical problem in both military and civilian communities. Experience has proven, and this record supports the conclusion, that unless those who have been or are habitues of the trade can be employed as undercover agents, the possibility of defeating those who profit from the racket is indeed slim. And, it is very interesting to note that the record in this case discloses that this informer was the vehicle for closing at least two civilian outlets in Los Angeles. While I realize that this is all beside the point to the issue before us, the Court seems to be indignant about the military service giving consideration to informers, and I would not want to support that condemnation without more facts upon which to base my judgment.
Now to the facts which control this decision. The accused took the stand in his own behalf and very carefully elected to confine his testimony to the possession specification. According to his evidence, as it is supplemented by the deposition of Dooley, the two became acquainted on the night of December 16, 1955. Dooley averred that he was introduced to the accused by “Slick” Berrian for the purpose of having the accused buy marihuana. The accused *294concedes his familiarity with Berrian and does not dispute that he was the intermediary or that the reason for the introduction was as indicated. In his pretrial statement, the accused admits that he is a user of marihuana; that he had smoked marihuana cigarettes for a period of three months prior to this incident; and that he had purchased marihuana in Los Angeles, California, on at least two different occasions prior to the purchase for Dooley. He is hardly the innocent youth who was lured by a “miserable addict” to become an offender. On the contrary, he was a member of a group who had no compunctions about trafficking in dope.
When accused was introduced to Dooley, the friendship must have jelled rapidly, for the latter was holding the accused’s money while he was participating in throwing the dice. During the course of the evening, Dooley — who must have had a sixth sense unless he knew the accused’s propensities — gave the accused a five dollar bill and asked him to purchase some marihuana. The source of supply was in Los Angeles, some forty-five miles away, and, of course, this was known to the accused, for he had made prior purchases and he did not suggest ignorance of any vendor. The request was refused by the accused for the very illuminating reason that it was inconvenient for him at the time and the money was later returned to Dooley. On the following day, Dooley was on the bunk of the accused when he returned to his barracks. It matters little who opened up the conversation, but during its course the accused informed Dooley that he was going on liberty, although not immediately. Dooley thereupon offered the accused $5.00 and again requested that marihuana be purchased for him. This request was refused at that time as the accused stated he didn’t know whether he would drive to Los Angeles. Sometime thereafter, the accused took the initiative and informed Dooley that he was going to the city, and Dooley furnished him with a five dollar bill with which to purchase the marihuana. The accused proceeded to Los Angeles, purchased twelve cigarettes and, according to his pretrial statement, he and one Private Toran smoked two or three of them before returning to the base. When he returned, the cigarettes were distributed, but the parties disagree as to their distribution. Dooley claims he received only three; accused claims all twelve were offered to Dooley, but that after some discussion about the accused being better able to safeguard the contraband, he consented to keep six of the cigarettes. The next day he was apprehended by agents of the Criminal Investigation Division.
In the light of that testimony, it seems to me that much of what is said in the Court’s opinion is irrelevant to our problem. I doubt that we need concern ourselves with shifting the burden of proof to the Government to excuse its agents. It just does not sound logical to me to say that a person is innocent of an offense if he is inveigled into committing a crime by an agent who does not know his reputation but, if he is reputed to be a violator under the same facts, he is guilty. To me, he is either entrapped or he is not. If there has been some sort of an inducement, the question is whether it amounts to entrapment. In those jurisdictions where justification is required, the evidence usually takes the form of showing some notoriety of previous transgressions by the accused. Merely because a person has previously erred does not give the Government carte blanche authority to originate the criminal design, implant it in the mind of the accused, and induce its commission. It appears to me the views expressed by Mr. Justice Roberts in Sorrells v United States, 287 US 435, 53 S Ct 210, 77 L ed 413, effectively answer the reasons advanced by the Court. He there said:
“Whatever may be the demerits of the defendant or his previous infractions of law these will not justify the instigation and creation of a new crime, as a means to reach him and punish him for his past misdemeanors. He has committed the crime in question, but, by supposition, only because of instigation and inducement by a government officer. To say that such conduct by an official of government is condoned and *295rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction. It is to discard the basis of the doctrine and in effect to weigh the equities as between the government and the defendant when there are in truth no equities belonging to - the latter, and when the rule of action cannot rest on any estimate of the good which may come of the conviction of the offender by- foul means.. The accepted procedure, in effect, pivots conviction in such cases, not on the commission of the crime charged, but on the prior reputation or some former act or acts of the defendant not mentioned in the indictment.”
It would be unrealistic to conclude that a person who had a reputation for dealing in dope might not be in the business, for that sort of reputation is usually earned. So, too, it would be naive to believe that a Government agent could have reasonable grounds to believe a person was engaged in the habit-forming drug traffic without the belief being supported by- some base. But neither the bad reputation of the accused nor the reasonable belief of an agent ought to permit the Government to entrap alleged offenders. Those are matters which merely cast light on the essential ingredients of entrapment. For that and other reasons, I see only two important questions in. this case, and they are: First, did the design originate in the mind of Dooley? Second, did he by persuasion lure an innocent and law-abiding Marine into the commission of the crime? If these are answered in the affirmative, the findings should be reversed. If they are answered in the negative, an affirmance is in order.
It will be noted that my two questions find their root in the rule adopted by the Federal civilian courts. I use the language found in Newman v United States, 299 Fed 128 (CA4th Cir) (1924) for it has been cited with approval by the United States Supreme Court in Sorrells v United States, supra. In the Newman case, Judge Woods stated :
. . It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the - government officers, and the accused is by persuasion, deceitful - representation, or inducement lured into the commission of a criminal act, the government is es-topped by sound public policy from prosecution therefor. ‘The first duties of the officers of the law are to prevent, not to punish, crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it.’ Butts v. United States (C. C. A.) 273 Fed. 35, 18 A.L.R. 143; Goode v. United States, 159 U.S. 663, 16 Sup. Ct. 136, 40 L. Ed. 297; Grimm v United States,-156 U.S. 604, 15 Sup. Ct. 470, 39 L. Ed. 550; Fiunkin v United States (C. C. A.) 265 Fed. 1; Smith v. United States (C. C. A.) 284 Fed. 673; Rothman v. United States (C. C. A.) 270 Fed. 31; Woo Wai v. United States, 223 Fed. 412,-137 C. C. A. 604; Zucker v. United States (C. C. A.) 288 Fed. 12; United States v. Reisenweber (C. C. A.) 288 Fed. 520; United States v. Healy (D.C.) 202 Fed. 349; United States v. Lynch (D. C.) 256 Fed. 983.”
In that instance, as in many others, the error raised on appeal was that the trial court erred in refusing to submit the defense to or properly instruct the jury on the issue. It is of particular importance to note that, in this instance, the law officer submitted the' defense to the court-martial under instructions favorable to the accused. That formidable step in the procedure is unmentioned by the Court, but it cannot properly be overlooked. As I have mentioned previously and as I hope to establish later, the evidence cannot be interpreted in such a manner as to compel a finding that the accused was entrapped. While my associates take a contrary view, I *296am convinced they overlook some of the facts which are of moment to a proper solution of the question.
The characters in this tragedy were all stationed at the Marine Base in El Toro, California. The accused was a user of marihuana, and he was closely associated with others who were also offenders. The source of the supply was in Los Angeles, and its precise location was not generally known. The accused was one of those individuals unfortunate enough to know the modus op-erandi and the address of the dope peddler. He was introduced to Dooley by one of his friends, who apparently represented to Dooley that the accused would purchase dope for him. While engaged in a game of dice, the accused, when importuned to violate the law, merely stated it was inconvenient for him to leave. Shortly thereafter, he accepts $5.00 as the purchase price of marihuana cigarettes from the man who is his second in a game of dice — a strange pattern of behavior for an innocent and law-abiding member of the Armed Forces who is being unwillingly lured into the commission of an heinous offense. The money was returned that evening, but the reason was that accused did not find it suitable to leave the game and drive the forty-five miles into Los Angeles to make the purchase. On the following day, the accused was hardly an unwilling victim, for he informed Dooley he was going on liberty, and when he was again requested to obtain the drug, he accepted the money and carried out the mission. From that point on, his stories are full of rather glaring inconsistencies, but, as they are pieced together and shaped by the other testimony, I believe any reasonable person would find that he purchased twelve cigarettes, and they were disposed of in the following manner: He and Toran smoked three before arriving at the base, including the “roach” found in his car. He delivered three to Dooley for the $5.00, and he retained six. These were found in his possession the following morning. Of course, at the time of trial, he claimed he was holding the six for Dooley, but, strangely enough, when he first related his story to the investigators, no attempt was made to fasten the blame on the informer. That became the avenue of attempted escape later, and it goes without saying the court-martial was not required to believe his story.
While I believe the foregoing facts show only that Dooley afforded the accused an opportunity to offend, I can for the moment assume, arguendo, that two or three requests by him, plus the advance of $5.00, equal entrapment, but, as my computations above show, the possession of nine cigarettes is in dispute. There is no evidence that Dooley and the accused had any understanding of the number of cigarettes to be purchased. Dooley states that only three were delivered to him, and he turned them over to the Criminal Investigation Division. He makes no suggestion that he expected delivery of more. The accused takes issue with the informer’s statements and accounts for his disposition in an entirely different manner. However, his own stories are inconsistent and his reasons for retaining possession of the six cigarettes extremely tenuous. But, at best for him, that only poses a factual question as to whether those cigarettes were purchased for himself, for other parties, or for the informer, and any dispute in that regard was submitted to the court-martial members for consideration. In my judgment, they could disregard the last explanation offered by the accused and find that nine of the twelve cigarettes were solely and completely owned and possessed by him. Under that sort of finding, I pause to wonder how the doctrine of entrapment can be applied.
One other concept which seems to be implicit in the Court’s opinion is that if an informer suggests a purchase, entrapment necessarily follows if the purchase is completed. In most of the cases cited in the Court's opinion, the principle of entrapment was discussed, but there was a verdict of guilt which was affirmed. That alone ought to convince my associates that importuning one to purchase contraband and furnishing the money does not equal entrapment. United States v Perkins, 190 F2d 49 (CA7th Cir) (1951). Furthermore, writing a decoy letter asking one to perform illegal services which initiates *297a series of events does not prove that defense. Weathers v United States, 126 F2d 118 (CA5th Cir) (1942). Merely creating an opportunity by being the first to move does not vitiate the subsequent events for if it did, the cases cited by the majority would have had different endings. There is nothing in any of those decisions which holds that an agent of the Government cannot start a chain of circumstances by making the first move. A peddler of dope does not walk up and ask unknown third persons to purchase his illicit merchandise, and a crime of possession does not originate in the mind of the third party merely because he solicits a purchase. All he does by making a request is to offer the accused an opportunity to offend against the law if he is willing to do so.
I find few cases reversed on the doctrine of entrapment, and how different this factual situation is from the one presented in the case which the Supreme Court reversed (Sorrells v United States, supra). For the benefit of the reader, I set out the factual base for the holding in that case that the defense should have been submitted to the jury for determination. There the informer, accompanied by three well-known friends of the defendant’s, went to the latter’s home, where the agent was introduced as a friend of the neighbor’s and a furniture dealer from another town. The agent was a former member of the 30th Division, AEF, as was the defendant, and one of the neighbors. The length of the visit was about an hour to an hour and a half, and much of the conversation turned to the war experiences of the three. A camaraderie was developed, and the agent asked several times if the defendant could obtain some whiskey for him. At first the defendant replied he did not fool with whiskey, but when the agent finally pleaded that he would like to get a half gallon of whiskey to take back home to a friend, and asked the defendant to assist, the latter capitulated and stated he would go and see if he could obtain the liquor. He was gone between twenty and thirty minutes before he returned with the whiskey. It was testified that the defendant had a good character and that he had been continuously employed with the same company for six years. To rebut the character testimony, three witnesses testified the defendant had the reputation of being a rum-runner, but there was no evidence of any prior sale or possession of liquor. I can well understand why, in that instance, the Supreme Court said the judge erred in not submitting the issue of entrapment to the jury — not that he erred in not holding, as a matter of law, that the defense was established — but in this instance I cannot understand why, on a charge of possession of marihuana, my associates say that all reasonable persons would be compelled to find that this accused was an innocent victim of an entrapment. Certainly I am unreasonable enough to be convinced to the contrary.
I would affirm the board of review.