(dissenting):
Before us is a judgment of the trial court rendered after an entrapment hearing. The court found entrapment and dismissed the case. We should affirm. All references are to U.C.A.1953, unless otherwise noted.
The State specifically appealed to this court for guidance in the proper interpretation of Sec. 76-2-303(1), U.C.A.1953, as enacted 1973. The majority opinion does not specifically and directly respond to this plea.
The trial judge ruled that under this new enactment, the legislature had elected to follow the “objective theory” of entrapment. Under this concept the character of disposition of the defendant is irrelevant; the crucial issue is an evaluation of the police conduct, viz, did the state employ impermissible deceits and persuasions to induce the defendant to commit the offense.
The state’s appeal is predicated on the ground there is a vestige of the “subjective theory” remaining in the new enactment and that the trial judge erred in not giving adequate weight to the evidence, which indicated defendant’s predisposition to commit the crime. Under this concept there are two requirements, inducement by the government and innocence on the part of the defendant. The pertinent issue thereunder is whether the criminal design originated with the officials of the government and they implanted in the mind of an innocent person the disposition to commit the alleged offense and induced its commission in order that they might prosecute.
76-2-303(1), as enacted 1973, provides:
It is a defense that the actor was entrapped into committing the offense. Entrapment occurs when a law enforcement officer or a person directed by or acting in cooperation with the officer induces the commission of an offense in order to obtain evidence of the commission for prosecution by methods creating a substantial risk that the offense would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
The foregoing follows the format and theory set forth in Sec. 2.13(1) of the Model Penal Code, Proposed Official Draft (1962):
*1235(1) A public law enforcement official or a person acting in cooperation with such an official perpetuates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(a) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(b) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.1
Significantly, in the Tentative Draft No. 9, another provision was offered, which set forth the subjective theory of entrapment, and the provision which was ultimately adopted by the institute was deemed an alternative formulation. The original proposed provision stated:
A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense he solicits, encourages or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so.2
In the commentary, following the tentative draft, the differentiation between the two theories is explained as follows:
The main issue between the two formulations can be put by considering two examples. Under the main statement,3 if A, an informer makes overreaching appeals to compassion and friendship and thus moves D to sell narcotics, D has no defense if he is predisposed to narcotics peddling. Under the alternative4 a defense would be established because the police conduct, not D’s predisposition determines the issue. Under the main formulation, A’s mere offer to purchase narcotics from D may give rise to the defense, provided D is not predisposed to sell. A contrary result is reached under the alternative. A mere offer to buy hardly creates a serious risk of offending by the innocent.5
The foregoing analysis is particularly pertinent to the issues presented. The trial court found, an informer, Charles England, made overreaching appeals to compassion and friendship and thus moved defendant to sell narcotics.
The court stated that assuming the evidence indicating predisposition were true (there was conflicting evidence), the issue was not whether such evidence would justify the entrapment. The court framed the issue as follows:
. whether this situation came about by one who was willing under the circumstances to get involved in this situation, or whether, in fact, it was induced, or that there was a substantial risk that it was induced, by a friendship relationship between Charles England and the defendant.
The court continued:
Clearly, that was Charles England’s point of view, he knew that as a friend that he could go to Shane Bridwell and some day make a buy from him if he kept working at it long enough. And it is not as though it was just from the 21st [November], because Charles England’s own testimony was that at least from the latter part of October, at the latest the first part of November, that he started working the defendant over on trying to make a buy. He knew, he testified that he knew that he could make a buy based upon friendship, or that he could cause a buy to be made.
******
*1236Now, you see, even based upon the friendship that existed between the defendant and Charles England, it was at least — at least — 24 days under the testimony, and probably more like a month, before the defendant finally agreed to sell. That’s under the testimony of Charles England. Charles England said the latter part of October, the forepart of November. Extending that out, he worked on him at least a month.
The court ruled that a jury would have a difficult time finding there was no entrapment, beyond a reasonable doubt. “Accordingly, the motion is granted, under the particular circumstances.”
The operative words of Sec. 76-2-303(1) and Sec. 2.13 of the Model Penal Code are the same. There is no provision or phraseology in the statute which can be construed as providing a “predisposition” or “innocence” requirement to constitute an entrapment defense. Concededly, prior to the adoption of this statute, this court had adopted the subjective test, viz, whether the accused had a predisposition to commit the crime.6 The legislature overruled this court.
The doctrine of entrapment is to promote a social policy.
. the chief aims of the criminal law are to prevent men from engaging in socially harmful conduct and to instruct men in the basic requirements of good citizenship. It is consistent with these purposes to recognize a defense based upon those unsavory police methods which have the effect of fostering criminality.7
The rationale to sustain the objective theory of entrapment is set forth as follows:
If the defense is available only to persons who are “innocent,” the full deterrent effect of the defense is undermined. Police conduct toward a particular defendant may be seriously objectionable even though he entertained a purpose to commit crime prior to any inducement by officials. Law-enforcement officers may feel free to employ forbidden methods if the “innocent” are freed but the habitual offenders, in whom the police have the greater interest, will nevertheless be punished.
Investigation into the character and disposition of the defendant has often obscured the important task of judging the quality of police behavior. The emphasis of court-room inquiry is thus turned from the character of the police conduct to the history of the accused and his immediate reaction to enticement.
The very notion that certain police conduct may be improper in relation to the “innocent” but acceptable when addressed to the “guilty” seems incompatible with the idea of equality before the law. As Mr. Justice Frankfurter put it in his concurring opinion in the Sherman case: “Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition.” 356 U.S. at 383. [78 S.Ct. 819]. Further, to permit the use, against a previously convicted person, of police measures not permitted toward the rest of society is to fix a permanent status of criminality against the hopes of enlightened penology.8
A further factor which verifies the legislative intention to enact an objective theory of entrapment is subdivision (6) of Sec. 76-2-303. There it is provided:
In any hearing before a judge or jury where the defense of entrapment is an issue, past offenses of the defendant shall not be admitted .
*1237This provision effectively eliminates the opportunity of the prosecution to present proof of the accused’s criminal character or predisposition by evidence of his past offenses.
The trial court did not err by limiting the issue of entrapment to the question of whether the informer, Charles England, induced the commission of the offense, by methods creating a substantial risk the offense would be committed by one not otherwise ready to commit it. In applying the objective test, the course of conduct between the accused and the agent of the police should be evaluated. The transactions leading up to the offense, the interaction between the agent and the accused, and the accused’s response to the inducements of the agent are all to be considered in judging the effect of the agent’s conduct on a normal person.9
The majority opinion remands the case for trial by jury of the entrapment issue. Section 76-2-303(4) provides that the court shall hear evidence on the issue and shall determine as a matter of fact and law whether the defendant was entrapped to commit the offense. If the majority is of the view that the subjective theory is applicable under Sec. 76-2-303(1), then the matter should be remanded to the trial court for a determination of the facts. The evidence concerning defendant’s predisposition was seriously disputed and no finding was made; there was substantial evidence to support either of the conflicting versions of the event. A review of the relevant statutory provisions indicates this court could only remand a case for a jury trial where the dismissal by the trial court was not based on any substantial evidence to support the defense of entrapment.
Although prolonging this dissent, the facts as revealed through the testimony of defendant and his wife merit review. In Sherman v. United States,10 Justice Frankfurter, in a concurring opinion, advocated the position that the issue of entrapment should be tried by the judge alone. He stated:
. Equally important is the consideration that a jury verdict, although it may settle the issue of entrapment in the particular case, cannot give significant guidance for official conduct for the future. Only the court, through the gradual evolution of explicit standards in accumulated precedents,‘can do this with the degree of certainty that the wise administration of criminal justice demands.
Defendant and his wife had known Charles England for many years. England and defendant had been friends since Junior High School days — some friend. On August 20, England attended defendant’s birthday party as a companion of defendant’s sister. England sold defendant a bicycle on that same day. Thereafter, England frequently visited in defendant’s home. On several occasions, he requested marijuana; he was consistently refused. Defendant and his wife explained to England they had discontinued all use of drugs the previous spring, for the reasons that drugs had caused discord in their marital relationship, and Mrs. Bridwell was expecting a second child. England further ingratiated himself to the Bridwells by bringing his supervisor to their home for the purpose of meeting defendant and possibly employing him. Defendant had been actively seeking work, and, although the meeting did not result in employment, he was grateful for England’s interest and assistance.
According to defendant on November 24, England came by his home in the morning urgently seeking marijuana. Defendant described him as nervous and upset. It was under these circumstances that defendant procured the drug, which he sold that evening to England. The majority opinion relates the conflicting testimony of the police officer, who had accompanied England to defendant’s home. Significantly, the Brid-wells, England, and the officer all differed as to the number of occasions the officer went to the home prior to the sale, which constituted the offense.
*1238The trial judge did not, as a fact-finder, resolve the conflicts. He merely found from the undisputed facts that the methods of England, who was acting in cooperation with the officer, created a substantial risk that defendant would commit the offense.
WILKINS, J., concurs in Justice MAU-GHAN’S dissent.. American Law Institute, Model Penal Code, P.O.D. (1962), § 2.13, p. 43.
. American Law Institute, Tentative Draft No. 9 (1959), § 2.10, p. 13.
. Subjective theory.
. The objective theory that was subsequently adopted by the Institute in 1962.
. A.L.I., Model Penal Code, Tentative Draft No. 9, § 2.10, p. 19.
.See State v. Curtis, Utah, 542 P.2d 744, 748-750 (1975), wherein the history of the doctrine of entrapment in this state is set forth in the dissent.
. A.L.I., Model Penal Code, Tentative Draft No. 9 (1959), § 2.10, p. 15.
. Id., p. 20.
. See Grossman v. Alaska, Alaska, 457 P.2d 226, 230 (1969).
. 356 U.S. 369, 385, 78 S.Ct. 819, 827, 2 L.Ed.2d 848 (1958).