(dissenting).
I dissent. The main opinion talks only about entrapment. It ignores the question of agency, — one of the major issues on appeal. Schultz asked the court for an instruction as to his relationship with the po*395lice officer and/or with one Ebaugh, the suspected pusher. This request was refused. Under the very facts stated in the decision here, I am of the opinion that the requested instruction would have put to the jury facts which a reasonable person could have believed, and which if he did believe, would demand an acquittal. Therefore, — and obviously, — failure to give such instruction ipso facto would be prejudicial; and had it been given, all the talk in this case about entrapment would be a complete non sequitur. Here is the instruction which was refused, and which, in my opinion, was not cured by any “looking at the instructions as a whole” bit:
If you believe that the undercover agent asked the defendant to get some narcotic drug for him and thereupon the defendant undertook to act in the prospective purchaser’s behalf rather than his own, and in so doing obtained the drug from a third person with whom he was not associated in selling, and thereafter delivered it to the buyer, the defendant would not be a seller and could not be convicted under this charge.
In the trial court’s handwritten annotation to this requested instruction, it was asserted, — and erroneously, I think, — that the refusal was based on the court’s belief that anyone is a principal in a completed sale, irrespective of whom “he is helping, so long as he is not the buyer himself.” This principle, if adopted, would make every undercover agent who makes a planned purchase of heroin for an officer, a seller to the policeman who employed and made him an agent to buy from X, the real seller.
In my opinion the majority decision eliminates innocence or immunity on the part of a paid undercover agent, and makes him particeps to a crime of pushing drugs, where such a result never was intended. In the instant case, — referring to the facts related in the main opinion, — Spangler obviously was the agent of Roche, the police officer,1 who engineered the purchase. This being so, the officer who furnished the money was the purchaser. He, of course, was immune. So was Spangler, his agent. So was defendant, if the jury were allowed to read and digest the instruction mentioned above, which connotes a possible, probable or absolute agency relationship like Tinker to Evers to Chance, — or Roche to Spangler to Schultz.
If the trial court had given the requested instruction, the entrapment soliloquy would have been moot and judicially persona non grata, — and hence based on an agency thesis rather than a bear-trap principle.
This defendant was sentenced to from five years to life. When one considers the *396serious consequences that may have been avoided by a very simple, understandable, fair and innocuous instruction, not at all irrelevant in this case, but quite apropos here, the matter of prejudiciality looms large, since a man’s liberty for such a long time hangs, without a price tag, in the balance.
There seems to be a division of authority on the “agency” aspect of these cases.2 The sensible and equitable rule, in my opinion, was expressed in Smith v. State (footnote 2), which particularly fits the facts of the instant case, where the court said:
We think that the New York cases and the Durham case are correct and reject the view that one who acts only as an agent, servant or employee of a law enforcement officer in the purchase of narcotic drugs for evidence purposes, and who is in no way connected or associated with the seller and receives no financial profit from the single sale, can be guilty of selling the narcotic drugs when the law enforcement officer is not. [See United States v. Sawyer, 3 Cir., 210 F.2d 169; United States v. Moses, 3 Cir., 220 F.2d 166.]
I am convinced that the defendant here, under the facts recited in the main opinion, should have a new trial, with appropriate instructions given, having to do with any agency relationship he may have had with the real purchaser and/or the real seller, —with an opportunity for the jury to determine such issue, which might make a world of difference as to defendant’s status as purchaser, seller, undercover man, possessor or simply a nutty go-between intending no offense save that of being altruistically stupid.
. Who, three weeks before was euchred out of a confidence game with defendant, who apparently sold him four white tablets for $8, which apparently contained little more than aspirin.
. People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578 (1959); State v. Weissman, 73 N.J.Super. 274, 179 A.2d 748 (1962). Contra: United States v. Prince, 3d C.C.A., 264 F.2d 850 (1959); Adams v. United States, 5th C.C.A., 220 F.2d 297 (1955); Durham v. State, 1955, 162 Tex.Cr.R. 25, 280 S.W.2d 737; People v. Hingerton, 27 A.D.2d 754, 277 N.Y.S.2d 754 (1967); Smith v. State, Tex.1965; 396 S.W.2d 876.