(dissenting).
This matter comes to us upon the State of Wyoming’s application for a rehearing from our decision in Janski v. State, Wyo., 529 P.2d 201.
It is alleged in the application that:
“ . . . . this Court made an erroneous conclusion from the Record and Briefs of counsel that there was insufficient evidence to enable the jurors to conclude that the Defendant was predisposed1 to commit the crime.” [Emphasis mine]
The State says that there was “predisposition” to commit the crime in the mind of Janski at the moment of inducement and therefore no entrapment took place, while we held in the original decision that Janski had been trapped. This former holding is now overruled by the majority opinion here.
The petition was allowed, however, with the provision that all issues originally raised by the appellant would be reviewed. Only the question of entrapment was considered in the original opinion.
ENTRAPMENT
The appellant frames the entrapment issues as follows:
“The evidence adduced at trial was insufficient to overcome the defense of entrapment thereby rendering the verdict contrary to the evidence.” and “The Court erred in submitting the issue of entrapment to the jury.”
I will consider these two related points together.
This appeal tells a story of the techniques being employed by law-enforcement officials in Casper and, perhaps, other parts of Wyoming in the mid-1970s in their effort to control the drug problem. It calls into focus the practice of employing a many-times-convicted criminal as an undercover agent and entrusting him with the kind of responsibility for integrity that has long been requisite to a good law-enforcement official’s character.
On the 6th day of January, 1973, Gary Janski, a young man in his very early twenties, lived at Casper, Wyoming. Laabs was what he and the Casper Police Department called an “undercover agent” and his nickname was “Haystack.” Haystack arrived at the Janski residence about 1:00 p. m. on the 6th day of January, 1973. Janski answered the door and together they went down into the basement whereupon Haystack asked Janski if he could *282buy some hashish. Janski told him that he would have to go out to a golf course somewhere and get it from a friend. Thereupon Janski left for about 25 to 30 minutes and was observed by Laabs going toward the golf course. Janski returned with two tinfoil-wrapped packages, representing to Laabs that they were quarter ounces of hashish and Laabs testified that he bought them for $80.
Kevin Doing, age 17, testified that he was present when the request was made of Janski and at that time Laabs had a gun pushed into Janski’s stomach and said “Don’t mess around with Haystack.” Doing said that the money was given by Laabs to Janski before Janski went for the hash, while Laabs said that he paid the money after he received it. Also, Laabs denied using a gun.
The Doing testimony as to the use of the gun was determined adversely to the position of the accused by the jury and is accepted by me in that light. I therefore do not regard it in any sense as being favorable to the defendant on the question of entrapment.
The above represents the sum and substance of the entrapment testimony in this case.
This court has worried in other cases about criminal prosecutions that have been laid out by the police. Justice McClintock spoke for the court in LaFleur v. The State of Wyoming, Wyo., 533 P.2d 309, 312-313, decided April 1, 1975, when he said:
“Condemnation of prosecution of crimes which have been arranged by law enforcement officers is of long standing. Thus, in Saunders v. People, 38 Mich. 218, 222 (1878) Mr. Justice Marston said in his concurring opinion that courts ‘ * * * have not yet’ gone so far, and I trust never will, as to lend aid or encouragement to officers who may, under a mistaken sense of duty, encourage and assist parties to commit crime, in order that they may arrest and have them punished for so doing.’
“The cited federal decisions are equally strong in their condemnation of manufacturing cases, the summation on that appearing in United States v. Russell, supra note 8, 411 U.S. at 434, 93 S.Ct. at 1644, where Mr. Justice Rehnquist, speaking for the majority, states: ‘ * * * We are content to leave the matter where it was left by the Court in Sherman: “The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, ‘A different question is presented when the criminal design originates with the officials of the Government, and the implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ ” Id. at 372 [78 S.Ct. 819] quoting Sorrells v. United States, 287 U.S., at 442 [53 S.Ct. 210].
The United States Supreme Court has commented upon the activities of undercover agents in entrapment cases such as this. In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 212, 77 L.Ed 434 (1932), the undercover agent asked the accused to get him some liquor (during prohibition), during their conversation about their war experiences. The Court said:
“It is clear that the evidence was sufficient to warrant a finding that the act for which defendant was prosecuted was instigated by the prohibition agent, that it was the creature of his purpose, that defendant had no previous disposition to commit it . . . . , and that the agent lured defendant, otherwise innocent, to its commission . . . . Such a gross abuse of authority given for the purpose of detecting and punishing crime, and not for the making of criminals, deserves the severest condemnation, . . . . ”
*283In speaking to the question of entrapment and undercover agents, the United States Supreme Court in the Sorrells case, quoted Circuit Judge Sanborn in Butts v. United States (C.C.A. 8th) 273 F. 35, 18 A.L.R. 143:
" ‘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. Here the evidence strongly tends to prove, if it does not conclusively do so, that their first and chief endeavor was to cause, to create, crime in order to punish it, and it is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it.’ ”
The precise question raised by the petition for rehearing is whether we erred in our original decision, as appellee-applicant urges and as the majority now holds, when we decided that there was insufficient evidence in the record to have warranted a jury finding the Janski was (when induced) “predisposed to commit the crime.” The court said there was no evidence of predisposition — appellee-applicant says that there was, and makes the following statement at page 2 of its brief in support of its application for rehearing:
“The point that the Appellee has attempted to make with the Court was that when a Defendant comes forward and tells the agent that he will go and get the agent some hashish when the agent asked that Defendant if he knew where the agent could get some hashish, then certainly that Defendant has proved his readiness to commit the crime, which is the same as saying he had exhibited his ‘predisposition’.” [Emphasis mine]
The majority now, in reversing Janski v. State, Wyo., 529 P.2d 201, also finds evidence of predisposition.2
“Criminal Design/’ “Plan," “Predisposition," ”Readiness"
According to the record in this case, it stands without dispute that the implant of the criminal design in the mind of Janski was not his. It was impressed there by Haystack-Laabs. It was, however, the Government’s burden to show that the criminal design had its origin with Janski before the State could overcome the defense of entrapment and thereby create a jury issue.
It is the accused’s duty to prove inducement. It is the State’s duty to overcome this by proving a criminal design — a predisposition to commit the crime — a plan, if you will, — and further that the accused was:
“ * * * awaiting any propitious opportunity to commit the offense.” United States v. Sherman, 200 F.2d 880, 882.
If this proof does not come into the record, the defense of entrapment, inducement having been proved, stands unassailed and there is, then, no issue for the fact finder.
It was said in Sorrells, supra:
“ ‘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 the criminal act, the *284government is estopped by sound public policy from prosecution therefor.’ ” (From Newman v. United States, (CCA 4th) 399 F.2d 128, 131)
This concept was recognized in Monten v. State, Wyo., 527 P.2d 1330, 1332 (November, 1974), where then Chief Justice Parker, speaking for the entire court, said:
“If the defendant’s testimony had been found by the jury to be true, that is, that he had not been connected with drugs and the drug business previously and if Quarberg (the Attorney General’s agent) or Cullen (a woman that was involved in all of the transactions with Quarberg) had implanted in the mind of an innocent person the disposition to commit the offenses and had induced the commission the jury would have been obliged to acquit on the ground of entrapment.” [Parenthetical information and italics mine]
There is no evidence in the record that, prior to the trap, there was in the mind of Janski any “criminal design,” “plan to commit the crime,” “predisposition” to do it, or any “readiness” on his part.
In Higby v. State, Wyo., 485 P.2d 380, 384, we said:
“Entrapment does not arise where one is ready to commit the offense, given but the opportunity, and suspected persons can be tested by being offered an opportunity to transgress the law although they may not be put under any extraordinary temptation or inducement.” [Emphasis mine]
That rule is in support of what I say here because it reiterates again that there must be a “readiness” — a “criminal design” — a “predisposition” existing in the mind of the accused and, therefore, the offering of the opportunity to transgress the law is only one way of testing and probing to discover if the design is present.
The rule does not say that every time an opportunity to break the law is made available to the accused and he acts upon it, his action becomes irrebuttable proof of a preexisting “criminal design” — “readiness” or an already-formulated plan. If that were so every transgression would be its own proof of preconceived evil lurking deep in the estuaries of the defendant’s soul and the concept of “preexisting criminal design” would be words without substance.
Furthermore, it is important to notice that Dycus v. State, Wyo., 529 P.2d 979, 980-981, goes on to reinforce the above analysis when the court says:
“We .... agree with the pronouncements in Sherman, 356 U.S. at 372, 78 S.Ct. at 821, that ‘Entrapment occurs only when the criminal conduct was “the product of the creative activity” of law-enforcement officials’ It is, of course, conceivable that evidence be so clear and undisputed that entrapment could be decreed by a court as a matter of law. . . . Sorrells v. United States, supra, 287 U.S. at 452, 53 S.Ct. 210; United States v. Costello, 5 Cir., 483 F.2d 1366, 1367; and see State v. Mendoza, 109 Ariz. 445, 511 P.2d 627, 630; People v. Harris, 213 Cal.App.2d 365, 28 Cal.Rptr. 766, 768.”
[Emphasis mine]
Consistent with the court’s statement in Dycus, supra, I suggest that we are here in exactly the situation there described:
Entrapment has occurred “ ‘when the criminal conduct was “the product of the creative activity” of law-enforcement officials.’ ” The record in this case shows that Janski’s conduct was the “product of the creative activity” of Laabs.
We have to rely on the record. We can’t guess what was going on in anybody’s mind. But the record discloses that it was Laabs who introduced the idea of the hashish buy in the mind of Janski and there is no evidence that Janski was predisposed to commit the crime prior to the time when Laabs made the suggestion.
I therefore cannot agree with the petitioner here when it says, at page 2 of its *285brief, that when a defendant comes forward after having been asked if he can provide the agent with hashish, and does it,:
“then certainly the Defendant has proved his readiness to commit the crime, which is the same thing as saying he has exhibited his ‘predisposition’ [Emphasis mine]
Especially do I not agree with the above quoted contention in view of the fact that both parties accepted the court’s instruction to the jury on entrapment without objection. That instruction is the law of this case and is not open to review by this court on appeal. Vinich v. Teton Construction Co., Wyo., 518 P.2d 137, 138; Gifford-Hill Western, Inc. v. Anderson, Wyo., 496 P.2d 501, 503, and 88 C.J.S. Trial § 425, p. 1151.
The mentioned instruction is set out in its entirety in the majority opinion, but I restate a part of it here so that my position will be clear on “predisposition”— “planning” — “criminal design” and “readiness” to commit the crime. The instruction says, in pertinent part:
“To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent, and the trap for the unwary whose criminal conduct was due to his own READINESS AND WHO HIMSELF PLANNED TO COMMIT THE CRIME." [Emphasis mine]
Contrary to the assertion of the appellee —applicant in its brief in support of its rehearing application, supra, the above quoted portion of the instruction does not say that “readiness” “is the same thing as saying he has exhibited his ‘predisposition’.” (From the brief of appellee on application for rehearing, page 2 thereof, supra). Nor does the instruction say that “readiness” and “planned” are the same thing.
Under this instruction, “predisposition” means that his criminal conduct must have come about as a result of his “readiness” to commit the crime and additionally there must be a showing that he “planned” to do it because this is the language of the instruction. That was the law of this case so far as the jury was concerned, and is the law of the case in the appeal, and is the law now. The instruction does not say “readiness” OR “planned” to commit the crime — it says “readiness” AND “who himself PLANNED to commit the crime." [Emphasis mine]
Being of a frame of mind which may be described as being “ready” to commit a crime is not the same thing as having formulated a “plan" to commit a crime. The former denotes a passive mental attitude consistent with indifference while the latter implies an element of intention formulated prior to the trap.
The applicant-appellee says at page 2 of its brief in application for rehearing (quoting from its brief in the case in chief):
“The jury found that on his own, Janski himself planned to commit the crime.” [Emphasis mine]
If that is what the jury found, then, in my opinion, our original decision was correct because there was no evidence of a “plan” to commit the crime on Janski’s part and yet, since such a jury finding was an essential element under the instruction, a judgment entered on the verdict, absent proof of planning, was error.
"Ready Complacency"
The State seeks to establish one or more of the following proof requisites of “criminal design,” “predisposition,” “readiness,” or the “planning” required by the instruction, by substituting “ready complacency” on the part of Janski as being proof of the ultimate fact necessary to defeat and overcome the defense of entrapment.3
*286“Complaisance” (complacence) is defined in the American Heritage Dictionary of the English Language as
“willing compliance to the wishes of others.”
“Ready complacency” comes into the philosophy which seeks to overcome the defense of entrapment through a rule which is discussed, among other places, in United States v. Becker, 2 Cir., 62 F.2d 1007, 1008, decided in 1933, where that court suggested these excuses for inducement:
“. . . .an existing course of similar criminal conduct; the accused’s already formed design to commit the crime or similar crimes; his willingness to do so, as evinced by ready complaisance.” [Emphasis mine]4
“Ready complaisance” used in this context is an evidence tool to show “willingness” as that attitude pertains to
(a) “an existing course of similar criminal conduct” on the part of accused or
(b) “the accused’s already formed design to commit the crime or similar crimes.”
Ready complaisance is not, in my opinion, the ultimate provable fact under the United States v. Becker doctrine (or the rule referred to by the majority in 33 A.L.R.2d 886, supra) — it is only a way to establish “willingness” to “commit the crime or similar crimes” or to show “an existing course of similar criminal conduct” in order that the elements of “predisposition”— “criminal design” or the “planning” spoken of in the instruction may be established to excuse the inducement.
The proof concept of “ready complaisance” comes into focus in a similar way in United States v. Sherman, 2 Cir., 200 F.2d 880, 882, where Judge Learned Hand, writing the opinion for the United States Court of Appeals, December 16, 1972, had this to say in speaking to the question of what constitutes a valid reply to the defense of entrapment:
“. . . . it is a valid reply to the defence, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offence charged, WHENEVER THE OPPORTUNITY OFFERED. In that event the inducement which brought about the actual of-fence was no more than one instance of the kind of conduct in which the accused was prepared to engage; and the prosecution has not seduced an innocent person, but has only provided the means for the accused to realize his preexisting purpose. The proof of this may be by evidence of his past offences, of his preparation, even of his ‘ready complaisance.’ ” [Emphasis mine]
Again, “ready complaisance” is a proof vehicle for establishing ultimate facts of the accused’s being:
“willing to commit the offence charged, whenever the opportunity offered.” and *287as a way to show a “preexisting purpose” on the part of the accused.
I suggest that, when viewed under the magnifying glass of Sherman and Becker, supra, and absent a showing of some preparation for the act complained of (i. e., some evidence of an intent to commit the crime) — a similar course of conduct — an already-formed design — a “willingness to commit the offence whenever the opportunity offered,” or evidence of some kind of “preexisting purpose,” — “ready complaisance” will not substitute for those required elements of proof.
I disagree with the majority for this reason : We interpret the meaning of “ready complacency” and its roll as an excuse for inducement differently.
I say that a “ready complacency” on the part of the accused may be considered in showing (a) an existing course of similar conduct or (b) the accused’s prior-formed design to commit the crime or similar crimes and a willingness to commit this one. While the majority and concurring opinions seem to say that a showing of an attitude of “ready complacency” unrelated to proof of (a) an existing course of similar conduct or (b) the accused’s prior-formed design to commit this crime or similar crimes is sufficient unto itself to create a jury issue on entrapment.
Mr. Justice McClintock says in his concurring opinion:
“As summarized in the annotation in 33 A.L.R.2d 883, 886, there are several excuses which can be shown to counter the defense of entrapment. One, but only one, of these is to show that defendant has already engaged in an existing course of similar crimes, and other excuses are enumerated in the annotation as alternatives. The fourth one so listed is by showing that the defendant was willing to make the sale and readily complied with the police request, referred to as ‘ready compliance.’ I find nothing in any of the cases or this annotation that indicates that predisposition can be established only by a course of criminal conduct or engagement in similar activity so frequently that his participation in this particular event can be said to be part of a criminal pattern. Conceding that such evidence might be more persuasive to the trier of the fact, I am of the opinion that a man who promptly complies with a request to sell drugs may be said to have shown ready compliance. The jury would be entitled to find willingness to make the sale from the fact that defendant was able quickly to contact a source of the drug, make arrangements for payment therefor, secure delivery, and complete the transaction with Laabs in a half hour.”
I would relate my difference with the majority to this narrow recognition: I do not believe that the response by the accused to the spring of the trap alone, naked and without further showing of predisposition, intent, or prior plan is excuse for inducement sufficient to constitute a jury question to the defense of entrapment. The majority of the court obviously does.
I would have held, that, there being no proof of predisposition or intent to commit the crime, inducement having been proven, the defense of entrapment was good and defendant’s motion for judgment of acquittal and motion to dismiss should have been granted.
DATE VARIANCE
As a further ground for reversal, the appellant contends that:
“The Court erred in allowing the trial to proceed after the Court discovered that evidence had been received concerning a crime for which the defendant has not been convicted and was not then being tried.”
During the trial of this case the witnesses, the court, and counsel became confused on the question of which day the purported illegal sale took place. The 6th of January, 1973, was a Saturday, and the 7th was a Sunday. The buy of hashish was actual*288ly transacted on Saturday, the 6th, while some of the testimony of the witnesses and certain evidence came into the record as though it took place on Sunday, the 7th.
Most of the discussion directed at straightening out the dilemma was outside the presence of the jury, although not all of it as appellee contends and the majority opinion assumes.5 Examples of testimony and evidence heard- and seen by the jury, are the following: Laabs testified that the hash was purchased by Janski on the 7th, but he said on cross-examination that he was not sure whether it was Saturday or Sunday. He said he went to Janski’s house on the 7th. In speaking about when he was at Janski’s house, he said that other boys in the house were watching TV, and then counsel asked:
“Q This was a Saturday, wasn’t it, or was it?
“A I am not sure, it was a Sunday.”
The State’s witness, Officer Fields, testified that he (Fields) was employed on the 7th by the Casper Police Department; and he responded affirmatively, to the following question:
“Q And on or about that date did you have an opportunity to see Mr. Robert Laabs in relation to the purchase of narcotics from Gary Janski ?"
Fields also identified State’s Exhibit No. 1, tinfoil-wrapped marihuana, which was the purported drug sold by Janski to Laabs, and in so identifying it indicated that the exhibit was received by him from Laabs on “1-6-73.” Laabs had testified that he went right to Fields’ home after the buy.
There may be much in the contention of the appellant when he says that the jury may well have been unduly prejudiced “concerning the requisite lack of predisposition (referring to the entrapment problem)” and it may, as counsel says, “have influenced the minds of the jurors in reaching their verdict.”
I tend to agree that this quandary might well have had a prejudicial effect in the area of entrapment. If, because of all this mix-up as to dates, it is reasonable to assume that the jury received the impression that there was more than one buy and, therefore, a course of criminal conduct was indicated, thereby establishing “predisposition” to commit this crime — the error would indeed have been fatal.
The entrapment feature is, however, the only basis upon which the date variance was prejudicial to the defendant. Otherwise, I am of the opinion that any rights which the defendant might have had because of the date confusion were waived by counsel’s refusal to accept the State’s offer to continue the case when the problem became apparent.
A continuance would have been the proper relief if it had been necessary. People v. Cook, 136 Cal.App.2d 442, 288 P.2d 602, 606:
“But if appellant had considered such variance of importance, it was his duty to subpoena witnesses with knowledge of his whereabouts on the new day and, if necessary, to ask for a recess of the trial to enable him to prepare his defense against the new day.”
To the same effect, see State v. Christian, 154 La. 915, 98 So. 418, 419 (1923).
In support of the appellant’s contention that the exact date of the crime was material, and proof should have been limited to that particular offense, counsel relies on Esquibel v. State, Wyo., 399 P.2d 395 (1965).
Esquibel, supra, was a rape case and the defense was an alibi for the date charged *289in the information. This court, in Esquibel, at 399 P.2d, page 399, said:
“There is abundant authority holding that where a defense of alibi is interposed the time of the act of sexual intercourse upon which the State relies for conviction does become material.” (Citing cases)
Where, however, the exact date is not critical to the defense, I reiterate what was said in State v. Koch, 64 Wyo. 175, 189 P.2d 162, 166:
“. . . . if the transaction relied upon by the state for conviction can be and is identified in a manner other than by stating the exact date that is sufficient.” (Citing State v. Slane, 48 Wyo. 1, 41 P.2d 269)
The weight of authority supports the proposition that a court must require the state to prove a specific date only when the time element is shown to be essential to the defense. I do not find that the exact date was critical to the defendant’s receiving a fair trial and agree with the majority on this point.
RIGHT OF INQUIRY INTO THE NARCOTICS AGENT’S PRIOR CRIMINAL ACTIVITIES NOT RESULTING IN CONVICTION
It is the contention of appellant that the court erred in denying the defendant the opportunity to inquire of the State’s undercover narcotics agent Haystack-Laabs as to his previous activity not resulting in convictions. The court in fact excluded the testimony and, I think, properly so. For the purpose of attacking his credibility, permission was extended to counsel to examine Laabs on matters pertaining to all crimes for which he had in fact been convicted.
We have long followed the general rule which holds that, in testing the credibility of a witness, only evidence of prior conviction is admissible.
In Eads v. State, 17 Wyo. 490, 503, 101 P. 946, 950, (1909), defendant attempted to discredit a State’s witness by offering to show, for the purpose of affecting his credibility, that he had been arrested for a shooting in a house of prostitution. The evidence proffered was collateral to the issue at hand. We adopted the New York rule, as announced in People v. Irving, 95 N.Y. 541, where the New York Court said:
“We have held of late that mere charges or accusations, or even indictments, may not be so inquired into since they are consistent with innocence, and may exist without moral delinquency. (Citing cases from New York courts)”
In support of this rule see also Jackson v. State, Wyo., 533 P.2d 1, 4; Dorador v. State, Wyo., 520 P.2d 230, 232; Gabrielson v. State, Wyo., 510 P.2d 534, 536; Wright v. State, Wyo., 446 P.2d 1014, 1016; and Rosencrance v. State, 33 Wyo. 370, 239 P. 952, 956.
I would agree with the majority on this question.
COURT’S REFUSAL TO ALLOW SURREBUTTAL TESTIMONY
Defendant charges error for the court to have denied the defendant the opportunity for surrebuttal after the State had introduced the .22 Derringer pistol and had elicited testimony about the .38 Smith and Wesson for the first time in rebuttal.
There was a gun involved in this case, and whether or not it was a .22 Derringer (without a cylinder) or a .38 caliber Smith and Wesson (with a cylinder) is of serious consequence in the area of witness credibility.
A young boy, seventeen years old, named Kevin Doing, testified for the defense in his case in chief and said that when Haystack asked Janski to get the hash (on the 6th of January) he said:
“. . . go get the hash and bring it right back here,”
And:
“ . . . don’t mess around with Haystack.”
*290Doing testified that when these things were said Laabs had a gun pushed into Gary Janski’s stomach.
In attempting to describe the gun, Doing remembered it as a gray, Derringer-type pistol, .22, with a white handle. On cross-examination the boy represented that the gun had a cylinder (a Derringer does not have a cylinder). Doing was re-called by the State to identify a certain gun and was handed State’s Exhibit 3 for identification, which was a Derringer. He responded to the inquiry as follows:
“. . . this isn’t the gun I saw [on the 6th of January], the gun had a cylinder right here (indicating), it had a shorter barrel, the cylinder right here, light gray handle.” [Bracketed information mine]
It now becomes extremely important to know if Laabs was using or carrying a gun with a cylinder in his undercover work. This is so because if he was his credibility would be suspect since he said he was not carrying or using a gun answering this description on the 6th of January. If he was not carrying the .38 at that time, the integrity of Doing’s testimony would be shattered.
In rebuttal, for the first time in the case, on direct examination by the State, Laabs was interrogated about a .38 revolver and he said he carried one only once for approximately five hours about a week after the 6th of January. Officer Fields, his supervisor, verified this.
The State rested rebuttal without offering the .22 Derringer and the court excused the jury. At this junction, counsel for the State announced that he wished to make a motion for the record. The Court said :
“You wish to reopen ?
“MR. LEWIS: For the purpose of offering State's Exhibit 3.
“MR. WHITAKER: And we may want to reopen with respect to the witnesses with respect to that gun now it is in evidence. It wasn’t in evidence, it is another thing if it is in. [Emphasis mine]
“THE COURT: You mean in the morning?
“MR. WHITAKER: Yes, I won’t take much time, we are trying to locate this Jim Ford, who was the one at the Mini Mart, the manager of the Mini Marts, and three or four others that he has pulled a gun on. Now, anyway the gun is in evidence and it has been offered, we have something else to rebutt [sic].
“THE COURT: All right, shall we now proceed with the Instructions and in the morning, if you wish to reopen briefly, Mr. Whitaker, you may do so.”
The next morning the court asked defense counsel to dictate his request (to reopen) into the record, and, among other things, the request contained these assertions:
Counsel for accused represented to the court that his surrebuttal witnesses were present and ready to testify. He asked permission to reopen since, during the State’s rebuttal testimony the day before the .38 Smith and Wesson was shown to the jury for the first time. In addition, counsel requested permission to reopen because the State was permitted to reopen to introduce the .22 caliber Derringer which was admitted into evidence.6 Counsel indicated that his request to reopen was addressed to his desire to place in the record the testimony of witnesses James Ford and Bill Pierce, from the Mini-Mart of North Casper, and counsel said:
“t . . both of whom have seen the Witness Laabs in the possession of a .38 caliber revolver on a number of occasions. . . . We are prepared to prove he was in on two separate occasions. . ” [Emphasis mine]
It should be remembered here that Laabs and Fields both had testified on rebuttal *291that the only time that Laabs had ever carried a .38 was on one occasion for five hours on a date which apparently fell between the 10th and the 14th of January, 1973.
Defense counsel further offered to prove through the testimony of Ford and Pierce that Laabs used the .38 Smith and Wesson in his undercover activities. Laabs, in rebuttal, had denied the use of this gun in this manner.
In resisting the request of the defense to reopen, the county attorney, addressing the court, said that the State’s rebuttal testimony was offered solely for the following purpose:
“The only thing we offered the gun for was to rebut the testimony of the young man that this Derringer that Laabs was carrying had a cylinder on it, a revolver-type cylinder, as he testified[Italics mine]
This is the very reason that it was error to not permit defendant to reopen for the purpose indicated in his counsel’s offer, after granting permission to the State to introduce testimony with respect to the .38 caliber gun in rebuttal for the first time, and permitting the State to introduce and receive the Derringer after the close of all the testimony. It then became the absolute right of defendant to rebut any new matter introduced on rebuttal by the State with respect to these guns and was not for the court to decide in the exercise of its discretion. The offered testimony on the part of defendant would not, in my way of thinking, have been collateral to the principal issues as the court ruled.
The real damage flowing from the court’s refusal to hear the testimony of Ford and Pierce might well have been to destroy the credibility of Doing by leaving unimpeached the testimony of the State’s principal witnesses, Laabs and Fields, even though the impeaching witnesses for defense were available and even though the defense had not had a prior opportunity to rebut the damaging evidence.
If Laabs had had a .38 on only one occasion for five hours between the 10th and 14th of January, as he and Fields testified, and if, on the other hand, Ford and Pierce would have testified that on:
“a number of occasions”
they had seen Laabs with a .38 Smith and Wesson, this would have been devastating to the credibility of Haystack-Laabs and would have removed the impeaching damage that the State’s witnesses rendered to the testimony of Doing.
My main concern is not so much with the question of whether the court should have permitted the defendant to reopen since this is within the sound discretion of the court. I am bothered about what I perceive to be error as a matter of law to have refused to permit surrebuttal testimony to counter the rebuttal testimony of Fields and Laabs to the effect that the only time that Laabs carried a pistol with a cylinder was for five hours a week after the 6th of January, 1973.
I cannot agree with Mr. Justice Raper when he says, in writing the majority opinion and speaking about the gun testimony, “The defendant had his opportunity to attack the credibility of the witness Laabs during his own case and passed it up.”, citing the following authority:
“As said in State v. Alexander, 1958, 78 Wyo. 324, 347, 324 P.2d 831, 839, cert. den. 363 U.S. 850, 80 S.Ct. 1630, 4 L.Ed. 2d 1733, in dealing with the denial of surrebuttal: ‘ * * * While it is true, as explained by Wigmore, supra, § 1874, pp. 517-518, and 1 Chamberlayne, The Modern Law of Evidence, § 383, pp. 516-517, that new facts brought out on rebuttal may properly be met by surre-buttal evidence, that rule does not permit surrebuttal merely to supply evidence which could have been given in chief or to cumulate additional evidence or to -fortify evidence already given, or to supplement such evidence because it has been impeached.upon rebuttal. * * * ’”
*292In my judgment the defendant had no opportunity to impeach the testimony of Laabs and Fields concerning the carrying of the .38 automatic because it was brought out on rebuttal for the first time.
Indeed, Doing testified about guns but the devastating testimony had to do with the assertions of Laabs and Fields that such a gun (with a cylinder) had not been carried by Laabs during the critical period of time pertinent to the alleged crime. This testimony, according to the offer of proof, could have been rebutted and, in my opinion, the court erred in not permitting it.
In VI Wigmore on Evidence, Third Edition, it is said by the author at page 510:
“Everything relevant as a part of the case in chief would naturally have been already put in; and a rebuttal is necessary only because, .... new subordinate evidential facts have been offered. ...” (In the defendant’s case the new subordinate facts offered were the ones introduced through the testimony of Doing where he said he saw Laabs use the gun on Janski and that it was a Derringer with a cylinder.)
The eminent writer then says the State had an absolute right to put in rebuttal evidence to this testimony — see § 1873, p. 517, sub-paragraph 4:
“For matters properly not evidential until the rebuttal, the proponent has a right to put them in at that time (i. e., the State’s right to cross-examine Doing and to introduce the testimony that the Derringer did not have a cylinder, as well as Laabs’ and Fields’ testimony that Laabs only had a .38 with cylinder for one day for five hours), and they are therefore not subject to the discretionary exclusion of the trial Court.” [Parenthetical matters and emphasis mine]
With respect to the “OPPONENT’S CASE IN REJOINDER,” § 1874, pp. 517-518, the author says (on the question of Janski’s right to respond to true rebuttal testimony) :
“For the opponent’s case in rejoinder there remain properly only two sorts of evidence, namely, evidence explaining away the effect of new facts brought forward by the proponent in rebuttal, and evidence impeaching the witness testifying in rebuttal . . . .” [Emphasis mine]
The author goes on to say:
“ . for evidence legitimately receivable in rejoinder (Janski’s proposed evidence of the Mini-Mart people who, under the offer of proof would have testified that Laabs used a .38 in his undercover work on different occasions than the one to which he testified) — in particular, evidence impeaching rebuttal witnesses — there has been no prior opportunity to adduce it (and this would be true with respect to the Mini-Mart witnesses since the .38 had not come into evidence until the State introduced it as a part of its rebuttal to the testimony of Doing that the gun he saw pushed into Janski’s stomach had a cylinder), and hence it is here entitled to be received, without depending on the Court’s discretion to relax the usual order; for this class of evidence, what has been said in the foregoing section (§ 1873, para. 4) (supra) is equally applicable.” [Parenthetical matters and emphasis mine]
For the reasons stated above, I would hold that the refusal of the lower court to permit the introduction of the proffered testimony was prejudicial to the defendant, deprived him of a fair trial, and thus was reversible error.
In summary, I would have held that the defendant was trapped. It was error not to permit the defendant to counter the new matter raised by the State in rebuttal. There was no error in the court’s refusing the defendant’s counsel the right to inquire into Laabs’ criminal charges for which there had been no conviction. The trial court did not commit error in refusing to dismiss the proceedings because of the variance between the date charged in the information as being the date on which the *293crime was committed and the dates testified to by certain witnesses and as shown by an exhibit in the record.
I would have denied the petition for rehearing.
. I emphasize “predisposed” because it is in this word, or modulations of it, that my dissent is anchored on the question of entrapment.
. Mr. Justice Raper says, in writing for the majority of the court: “It -will be observed that there are various alternative ways of establishing predisposition and may be shown by a fashioning of circumstances preceding the sale in which the defendant committed the offense. The facts in this case are very simple and fall within the rule of ready complaisance. They show that Laabs went to the defendant’s residence, asked to buy drugs, the defendant went to his known source, was gone a few minutes and returned. His plan and design to sell became fixed with those preliminaries and were confirmed when the sale was made. Prom these facts, there is the requisite evidence of predisposition and that is what the cases hold.”
. By its holding, the majority agrees that this may be done. Mr. Justice McClintock, in his opinion concurring in the affirmance of the conviction says:
“ . . . . The testimony of Laabs, however, was to the effect that he merely asked for the drug, the defendant said he would have to go out to get it, did go out, and re*286turned some 25 to 30 minutes later with two quarter ounces of hashish which were then delivered to him upon payment.
“To me this conduct is evidence of ‘ready compliance’ . . .” (Citing United States v. Becker, 2 Cir., 62 F.2d 1007 (1933).
. Justice Raper, author of the majority opinion, says:
“Without getting into the details of the trilogy . . . . of eases of the Supreme Court of the United States on entrapment, we find a good synopsis of the rules to be gleaned therefrom in Anno., Entrapment— Narcotics Offense, 33 A.L.R.2d 886, § 3: ‘The cases within the scope of the annotation support the conclusion that the defense of entrapment cannot be successfully interposed by one accused of a narcotics offense if he was already engaged in an existing course of similar crimes, . '. or if he had already formed a design to commit the crime with which he was charged, or similar crimes, as where he offered to make a sale prior to any solicitation, or was willing to do so, as shown by ready complaisance, or if the criminal design originated in the mind of the defendant, and the government, having through its agents reasonable cause to believe that the defendant was violating the narcotics laws, merely afforded opportunities or facilities for the commission of the offense, as by the employment of informers or decoys, the use of decoy letters, or other stratagems. ⅜ * ⅜ ’ (Emphasis and footnote supplied.) ”
. The majority opinion says: “While there was some confusion as to which case was being tried, there is no indication that the jury received any prejudicial evidence or implications, because the transcript indicates that the matter of confusion if in fact it did exist, was presented to the court alone and outside the hearing of the jury; from what we can see in the transcript, the jury could have been completely oblivious to any mixup. . . ."
. All parties and the court treated the matter as though the Derringer was admitted, although the record does not contain a ruling on the offer.