dissenting.
Believing, as did Judge Wells in the Court of Appeals, that there is sufficient evidence in Case No. 79CRS22551 of the agency of Ricky Burnette to require that the jury be instructed on entrapment by an agent of the government and in Case No. 79CRS28603, there is sufficient evidence of entrapment by an agent to require a charge on this defense, I respectfully dissent.
The state’s evidence in both cases tended to show as follows: From November 1978 to August 1979 Durham Police and the SBI conducted, in the words of one officer, a “sting operation or undercover fencing operation” on Greer Street in Durham. The officers held themselves out as an employment agency named “Part Time Help Limited” (hereinafter Part Time). As one officer testified, the real “purpose of this operation was to get people to bring us stolen property.” Persons who did so were videotaped and later charged with criminal offenses involving the stolen property which they brought in. One officer testified:
As part of this operation, we encouraged people who came into our store to get other people to bring materials to us. When we had seen a fellow enough times and we had gotten them on tape enough times we did not exactly discourage them necessarily from coming back with the same item, we knew to not offer him quite as much money as we got into him. We would continue to suggest to these people that they bring other people around. When we talked to these people, we made it known that we would buy property from them. We would say we would buy quality property but we could not pay a whole lot for it. We wanted good merchandise but we could not pay a whole lot of money for it. We did not actually say stolen property.
*583This officer also acknowledged that by the time of the incidents involving defendant, 22 and 23 May 1979, Part Time had dealt with Ricky Burnette “quite a few” times; “[h]e was a regular. He had brought us cars before.” The director of the operation testified that he had been present “on numerous times in the store when Ricky Burnette came in for one purpose or another.” Another officer testified:
It was a part of my work in this investigation to get as many people involved in this fencing operation as possible. We told people who brought in property if they knew anyone else who had any merchandise that they wished to sell, for them to come in and we would discuss purchasing the merchandise from them. One of these people that I spoke to in this fashion was Ricky Burnette.
Again, an officer said:
Ricky Lamont Burnette came into the store with Mr. Luster. I had seen Mr. Burnette on several occasions prior to this time. I had told Mr. Burnette that we would buy property.
When we told these people that we would buy property, we just said property, we wanted quality property and we couldn’t pay much for it. We didn’t make that statement to all the individuals who came in our store.
I either told or someone to the best of my knowledge advised Mr. Burnette that property could be bought there for money.
In Case No. 79CRS28603, tried before Judge Godwin, the state’s evidence also tended to show that on 22 May 1979, defendant sold to Part Time a 1979 Dodge Challenger, which had been stolen on 22 May from Coggin Pontiac, for $400. In Case No. 79CRS22551, tried before Judge Clark, the state’s evidence tended to show that on 23 May 1979, defendant sold to Part Time a 1979 Pontiac Grand Prix, which had been stolen on 23 May from Coggin Pontiac, for $500. On both occasions defendant was accompanied by Ricky Burnette.
*584In both cases defendant testified in his own defense and offered in corroboration the testimony of Ricky Burnette. Their testimony tended to show the following:
The officers at Part Time told Burnette in May 1979 they didn’t want to buy any more cars from him. They asked him to bring someone else “down there with the cars.” Burnette then contacted defendant, whom he had known five or six months, and requested defendant to help him take cars from Coggin Pontiac to Part Time. On both occasions Burnette himself actually took the cars from Coggin’s lot and defendant observed Burnette talking with someone at Coggin before Burnette took the cars. After they left Coggin, defendant at Burnette’s request drove the cars to Part Time where defendant negotiated the sales in the presence of Burnette. The two then left Part Time and Burnette paid defendant a “commission” for driving the cars and negotiating the sales. Defendant’s “commission” on 22 May was $60 and on 23 May, $85.
Burnette suggested that defendant, who was unemployed, might get a job with Part Time if the people there were sufficiently “impressed” with him. Defendant bragged about his ability to deliver expensive cars in his negotiations with Part Time because Burnette instructed him to do this. Defendant did not know that the cars were stolen. Both transactions originated entirely in the mind of Burnette and defendant’s participation was entirely at Burnette’s suggestion. Defendant said: “Prior to talking with Mr. Burnette ... I had neyer had any desire to participate in any kind of stolen goods ring.” Defendant was twenty-three years old in May 1979 and had not been in any difficulty with the law since he was “sixteen or seventeen” when he was convicted of misdemeanor breaking and placed on probation.
In Case No. 79CRS28603 involving the 22 May transaction, Judge Godwin charged the jury generally on the defense of entrapment, but he limited the jury’s consideration to actions by law enforcement officers themselves who were operating Part Time. He did not instruct the jury that defendant could be entrapped by the actions of Burnette acting as an agent for these officers. Defendant was convicted in this case of felonious possession of stolen property and sentenced to a maximum of six years’ imprisonment. In Case No. 79CRS22551 involving the 23 May *585transaction, Judge Clark refused to give instructions relating to the entrapment defense, even though defendant made a timely request that such instructions be given. Defendant was convicted of larceny of a motor vehicle and sentenced to not less than six nor more than ten years’ imprisonment. His sentence for the 22 May transaction, Case No. 79CRS28603, was to begin at the expiration of the sentence imposed in Case No. 79CRS22551.
Defendant’s argument that Judge Godwin erred by not instructing on entrapment by an agent of the officers and that Judge Clark erred by not instructing on entrapment at all is cogently and succinctly stated in his brief:
The police induced an unwitting third party into becoming their agent for the purpose of persuading others to bring them stolen property. This third party, who was Ricky Burnette, persuaded the defendant, who was not otherwise so inclined, into helping him steal property. The defendant was, therefore, entitled to a jury instruction on entrapment by an agent of the police.
Entrapment may occur through actions of “law enforcement officers or their agents.” State v. Walker, 295 N.C. 510, 513, 246 S.E. 2d 748, 749-50 (1978) (emphasis supplied). The principal question argued in the briefs is whether a private citizen like Burnette can in law be an agent of the police when he acts for them and at their direction, unaware of their true identity but believing them to be private citizens, so that a defendant induced to commit a crime by such a person can raise the defense of entrapment. The majority avoids directly addressing this question by concluding (1) even if Burnette were an agent of the police, there is no evidence that Burnette entrapped defendant because all the evidence showed defendant to have been predisposed to commit the crimes charged and these crimes originated in defendant’s mind, rather than Burnette’s, and (2) there is no evidence of an agency relationship between the police and Burnette because all the evidence shows that Burnette was acting in furtherance of his own interest and not at the direction or authorization of the police. I disagree with both conclusions; furthermore, I believe that a person like Burnette can be an agent of the police for purposes of the entrapment defense even if he does not know that his principals are police officers.
*586It is important to note that defendant does not contend that all the evidence in the case shows, as a matter of law, that he was entrapped. He argues only that there is some evidence in both cases from which a jury could conclude that he was entrapped by the actions of Burnette and that Burnette was then acting as an agent of the police. Defendant contends also that Burnette’s unawareness that the persons for whom he acted were police officers does not preclude the existence of an agency relationship. I think defendant’s assessment of both the evidence and the law is correct.
Whether a defendant is entitled to have the defense of entrapment submitted, absent questions of agency, is governed by well-established rules set out in State v. Walker, 295 N.C. 510, 513, 246 S.E. 2d 748, 749-50 (1978):
‘Whether the defendant was entitled to have the defense of entrapment submitted to the jury is to be determined by the evidence. Before a Trial Court can submit such a defense to the jury there must be some credible evidence tending to support the defendant’s contention that he was a victim of entrapment, as that term is known to the law.’ State v. Burnette, 242 N.C. 164, 173, 87 S.E. 2d 191, 197 (1955). The defense of entrapment consists of two elements: (1) acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime, (2) when the criminal design originated in the minds of the government officials, rather than with the innocent defendant, such that the crime is the product of the creative activity of the law enforcement authorities. [Emphasis supplied.]
In State v. Burnette, 242 N.C. 164, 169, 87 S.E. 2d 191, 194 (1955), this Court discussed the defense of entrapment as follows:
It is the genera] rule that where the criminal intent and design originates in the mind of one other than the defendant, and the defendant is, by persuasion, trickery or fraud, incited and induced to commit the crime charged in order to prosecute him for it, when he would not have committed the crime, except for such incitements and inducements, these circumstances constitute entrapment and a valid defense. [Citations omitted.]
*587In the leading case of Butts v. U.S., supra [273 F. 35 (1921) ], Sanborn, C.J., said for the Court: ‘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.’
A clear distinction is to be drawn between inducing a person to commit a crime he did not contemplate doing, and the setting of a trap to catch him in the execution of a crime of his own conception. S. v. Jarvis, supra [105 W.Va. 499, 143 S.E. 235 (1928)]; S. v. Mantis, 32 Idaho 724, 187 P. 268; 15 Am. Jur., Criminal Law, p. 24; 22 C.J.S., Crim. Law, pp. 100-101.
The essence of entrapment, then, is the inducement by law enforcement officers or their agents of a person to commit a crime when, but for the inducement, that person would not have committed the crime.
If one assumes for purposes of this argument that Burnette was an agent of the police and they are therefore bound by his actions as an agent, there is plenary evidence that but for the importuning of Burnette, defendant would not have committed the crimes for which he was convicted. Defendant’s evidence tended to show that Burnette persuaded defendant to help Burnette transport the automobiles from Coggin Pontiac to Part Time; the idea was Burnette’s alone; before Burnette approached him, defendant had no desire to participate in illegal activities; and defendant had not engaged in any criminal activity for about six years.
The majority concludes, however, that all the evidence shows defendant was predisposed to commit these crimes; therefore the defense of entrapment is not available to him. The majority rests this conclusion largely on defendant’s tape-recorded conversations with the officers at Part Time. These statements were made, of course, after the thefts were committed. While they may be some evidence of defendant’s state of mind before the thefts, the logical connection is a weak one. Further, and most important, according to Burnette and defendant, defendant engaged in this conversation at the instructions of Burnette in an effort to please those with whom he dealt at Part Time so that he could obtain more *588money for the vehicles and be given further opportunity to make similar deliveries.
Defendant also testified that he did not know the automobiles were stolen. This, in itself, is some evidence that he was not predisposed to steal them. The credibility of all this evidence is, of course, for the jury. Insofar as other evidence tends to show that defendant was predisposed, the evidentiary conflict should be resolved by the jury.
Defendant’s six-year-old misdemeanor conviction does not show a predisposition to commit the crimes involved. See Sherman v. United States, 356 U.S. 369 (1958); State v. Stanley, 288 N.C. 19, 32-33, 215 S.E. 2d 589, 598 (1975).
There is no evidence that Burnette was told to approach this particular defendant or that Burnette knew that the persons at Part Time were law enforcement officers. Under these circumstances the courts are divided on whether a person like Burnette can be an agent of the officers for purposes of the entrapment defense. See Note, Entrapment Through Unsuspecting Middlemen, 95 Harv. L. Rev. 1122 (1982); Note, Entrapment: An Analysis of this Agreement, 45 B.U.L. Rev. 542, 563-65 (1965). The better reasoned view is that persons like Burnette can be an agent of law enforcement officers whereby defendants are entrapped.
The defense of entrapment should not be withheld . . . merely because the third party inducer was unaware that he was being used by the government for law enforcement purposes. The mental processes of the third party inducer have little relevance to the inquiry for, wittingly or unwittingly, he may be an agent of the government, and it is therefore his actions and the mental processes and predisposition of the allegedly otherwise innocent defendant which bear scrutiny.
Likewise, because the unwitting third party is not directed to purchase morphine from, a particular individual, the government should not be allowed to avoid responsibility for the third party’s actions. True, the third party may be classified as a free agent with regard to whom he approaches .... Nevertheless, it is foreseen by the government in each such instance that he must approach someone. Since it is the *589very purpose of the government that he do so in order to prosecute the person approached, the government should not be allowed with immunity to delegate the determination of whom to approach. Where a third person under these circumstances has induced another to participate in the crime, the government is the direct and foreseeable cause of this participation. The likelihood that this defendant is otherwise innocent is equally as great as, or no less than, where the government directed the third person to a particular individual. Accordingly, the defense of entrapment should be equally available.
Note, supra, 45 B.U.L. Rev. at 564-65.
Essentially, the same position is taken in an excellent Harvard Law Review Note which, after analyzing the application of the entrapment doctrine to undercover “sting” operations, calls upon the courts to “recognize that government responsibility for inducing persons not otherwise disposed to commit criminal acts is not attenuated by the fact that the offense is committed upon the immediate prompting of an unsuspecting intermediary.” Note, Entrapment Through Unsuspecting Middlemen, 95 Harv. L. Rev. 1122, 1140 (1982). As the Court said in People v. McIntire, 23 Cal. 3d 742, 748, 591 P. 2d 527, 530 (1979): “Improper governmental instigation of crime is not immunized because it is effected indirectly through a pliable medium.”
Our Court of Appeals has adopted this view in State v. Whisnant, 36 N.C. App. 252, 243 S.E. 2d 395 (1978). There defendant was convicted of selling a controlled substance. Ms. Reynolds, defendant’s friend, called defendant and told her that she had a friend who needed drugs. Ms. Reynolds’ friend was an undercover SBI agent by the name of Prilliman. There is nothing in the Court of Appeals’ decision to indicate that Ms. Reynolds was aware that Prilliman was an SBI agent. The Court of Appeals concluded that the evidence “tends to show some inducement of defendant by Ms. Reynolds as the agent of Prilliman to commit the crime.” The court said, 36 N.C. App. at 254, 243 S.E. 2d at 396-97:
Under these circumstances it was the duty of the trial judge ... to apply the law to the evidence by instructing the jury in substance that if Ms. Reynolds was acting as an agent for S.B.I. Agent Prilliman and she as such agent induced the *590defendant to commit the crime charged, the S.B.I. agent would be responsible for her actions and the defense of entrapment would be available to defendant. Sherman v. United States, [356 U.S. 369 (1958) ].
I do not understand the majority to take a contrary position on this question.
The majority concludes simply that there is no evidence of an agency relationship between Burnette and the police at Part Time. The majority says there is no evidence of any mutual understanding between them, ie., no evidence that police authorized Burnette to act with regard to defendant and no evidence that Burnette in turn willingly acted pursuant to such authorization.
I disagree. There is evidence from which a jury could find that Burnette, when he dealt with defendant, did so as an agent of the police officers who were operating Part Time. It is true that, according to the officers’ testimony, they never used the words “stolen property” in their conversations with Burnette. Nevertheless the state’s evidence was that the “purpose of this operation was to get people to bring us stolen property” and that the officers encouraged regular customers like Burnette, who the officers knew to be thieves and who, in turn, knew that Part Time would buy stolen property, to solicit others to deal with Part Time. The officers’ conversations with Burnette were designed to, and in effect did, direct him to tell others that Part Time was a fence for stolen property. The conversations were designed to, and in effect did, direct Burnette to get others not only to bring in the property which had already been stolen but also to steal property for which Part Time would provide an outlet. Burnette testified that the officers first persuaded him to steal cars and to bring them to Part Time. One officer even accompanied him on his first theft. After he had delivered a number of stolen cars to Part Time, the officers told him they would not buy more cars from him and directed him to “bring somebody else down there with the cars.” Burnette testified in Case No. 79CRS22551:
They [the officers at Part Time] contacted me ... . They told me over the phone they had some work for me to do. So, I went down there . . ., and they told me they *591wanted me to deliver a car, and I went to K-Mart. Officer Raney told me they wanted me to deliver a car.
We went to K-Mart parking lot. He got some Virginia tags out of his personal car, put them on a Chevrolet Impala, no a Caprice. Then he asked me which car did I want to drive. So, I got out of his car and I went, I followed him to Oxford, ... we met a man up there. The man shined the light on the car and everything and after they transacted the business we left there. On the way back he asked me how much money did I think he got for the car. I said that I don’t know, and he said, well you take anything, you know, car, gun, t.v., so and so on.
After this was told to me, I made many more trips to Part Time. I brought them automobiles.
They told me not to bring anything there, that they didn’t want anything from me . . . sometime in May, 1979. They told me they didn’t want any more cars from me. They indicated to me that I should go out and advise people about the availability of Part Time and the services that they offered. Most every time I went there they told me to bring somebody else down there new that wanted a little extra money.
After they told me they wouldn’t take anymore [sic] cars from me, I approached someone else for the purpose of taking cars down there so that I could get money. That was Mr. Luster.
Burnette testified in Case No. 79CRS28603:
I am familiar with the gentlemen who were working behind the counter at Part Time. I see them here in the courtroom. These gentlemen told me that they weren’t going to buy any more material from me. They told me this before I had gotten in contact with Mr. Luster. They told me that they weren’t dealing with anymore cars, but what it was that they didn’t want to buy no more cars from me. They wanted me to bring more people, bring somebody else down there with the cars. This is when I went to see Mr. Luster.
*592When I went to see Mr. Luster I told him I had a job over at Part Time. Mr. Luster told me that he was looking for work. I did not tell him what was involved in the job.
Clearly this is evidence from which a jury could find that the officers at Part Time directed and authorized Burnette to go out and get other people to do the same thing he was doing, ie., stealing automobiles and other personal property and bringing them to Part Time to sell. Pursuant to this direction and authorization Burnette induced defendant to commit the thefts charged against him in this case.
Finally, since defendant admitted his actions in obtaining and delivering the stolen vehicles to Part Time, defendant’s denial of knowledge that the vehicles were stolen does not render the defense of entrapment unavailable. Only where a defendant denies all participation in the criminal activity can he not avail himself of the defense of entrapment. State v. Neville, 302 N.C. 623, 276 S.E. 2d 373 (1981). The Court noted in Neville that: “The entrapment defense is not inconsistent with the defense of lack of mental state since the defense of entrapment itself is an assertion that it was the will of the government, and not of the defendant, which spawned the commission of the offense.” Id. at 626, 276 S.E. 2d at 375.
I am cognizant of the need for undercover “sting” type operations in ferreting out crime. So long as these operations merely provide opportunity for persons predisposed to criminal activity to engage in it and be “stung,” I applaud the officers for their energy and ingenuity. An operation, on the other hand, that encourages and incites criminal activity on the part of people who would otherwise have refrained from such activity has no place in the law enforcement arsenal. “The first duties of the officers of the law are to prevent . . . crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting . . . it.” State v. Burnette, supra, 242 N.C. at 169, 87 S.E. 2d at 194 (quoting Butts v. U.S., 273 F. 35, 38 (1921)), quoted with approval in State v. Stanley, supra, 288 N.C. at 28-29, 215 S.E. 2d at 595. As Justice Harlan wrote in Lopez v. United States, 373 U.S. 427, 434 (1963): “The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different *593from the permissible stratagems involved in the detection and prevention of crime.” (Emphasis original.) Specifically, “sting” operations such as the Part Time investigation must serve only to detect criminal activity and not instigate it.
The function of undercover investigation is to bring these hidden activities under control by detecting persons who are engaging in such a course of conduct or by ‘predetecting’ the crimes of persons who would commit them if presented with a favorable opportunity. However, law enforcement tactics that seek to induce persons who are not predisposed to crime to engage in criminal activity are intolerable for two reasons. First, individuals have a strong interest in privacy: law-abiding people should be left alone by the government. Second, law enforcement resources are wasted when the subjects of investigation are not predisposed to commit crimes. Governmentally created opportunities to engage in an illegal activity should therefore be designed to detect and apprehend only those who are predisposed to commit a similar offense.
Note, supra, 95 Harv. L. Rev. at 1130-31 (footnotes omitted). I fear, in light of the officers’ own admissions, that although Part Time was intended to be merely a trap for the unwary criminal, it was instead infected with so much incitement and encouragement of criminal activity that defendant, not predisposed to crime (if his evidence is believed), was induced to engage in it.
Defendant is entitled in both cases to instructions on his defense that he was entrapped by Burnette acting as an agent of the police. I vote, therefore, that defendant be afforded new trials in both cases.
Justice CARLTON joins in this dissent.