Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
PEOPLE v. MAKOVSKY.d1
Appellant was charged in an information containing two counts, one of which alleged the unlawful selling of blackjacks and the other the unlawful selling of billies, both contrary to the statute. Stats. of 1923, pp. 695, 696, § 1, amended May 22, 1925, Stats. of 1925, p. 542, § 1. Count 1 was dismissed. Defendant was found guilty upon the second count. This is an appeal from the judgment and from an order denying a motion for a new trial. Two main grounds are urged for a reversal of the judgment and order.
Appellant first complains that there was no evidence to show the instruments sold were billies. There is no merit in this contention. The instruments were produced at the trial and there is ample evidence in the record to show that they were commonly known as billies. Moreover, there is, according to the testimony, little if any difference between a billy and a blackjack, and the possession of either instrument is denounced by the statute.
Appellant next complains that the count upon which he was convicted does not state facts sufficient to charge a public offense, in that it did not charge the sale of an instrument “commonly known” as a billy. The information charged the violation of a particular statute which was referred to, and it also stated the type of instrument which was unlawfully sold. The language employed was sufficient to enable a person of common understanding to know what was intended. Pen. Code, § 950. The information was therefore sufficient within the provisions of section 951 of the Penal Code.
And, finally, appellant claims the evidence establishes that a trap was deliberately set by police officers who caused his arrest and conviction. Upon this subject it appeared in evidence that in September, 1933, a man named Forts was working in the police department in the city of Oakland. He was not a regular officer but was paid so much for each case in which he procured arrests for offenses. In the present case he received the sum of $7.50 for his services. On the day in question Forts, acting under instructions from the department, went to the defendant's place of business and told defendant that he was working on a certain boat; that a friend of his had informed him he could procure blackjacks from defendant. Forts stated he wanted a dozen. Defendant informed Forts that he did not have such instruments, but that he would try to procure them for him. Forts then left defendant's store and later returned and received from defendant three billies which defendant had in the meantime procured from a wholesale house. Forts paid defendant $1.50 apiece for the articles, and later turned them over to police officer Pardee of the police department under whose direction he was acting. Forts was told by the officer to return to defendant's store with the billies purchased, and obtain more of them. While Forts and defendant were discussing the matter, Pardee entered the store and arrested defendant. It is appellant's contention that these facts present a clear case of entrapment. In support of this contention it is argued that there is no evidence in the record to show appellant had ever before been arrested or under suspicion of having committed this character of offense or of any other offense at any time, or that he was in the habit of selling the instruments in question or had them in his possession for sale; that the crime did not originate in the mind of appellant but rather in the minds of the officers who used persuasion and deceitful representations to induce and lure appellant into the commission of a criminal act.
It is unquestionably true that decoys may not be used 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 minds of officers, and the accused is by persuasion, deceitful representation or inducement lured into the commission of a criminal act. When an officer induces a person to commit a crime, which he would not have committed without such inducement, the law will not punish the person so lured into the crime. People v. Malone, 117 Cal. App. 629, 4 P.(2d) 287. Under such circumstances the government is estopped by sound public policy from prosecuting therefor. The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite and create crime for the sole purpose of prosecuting and punishing it. While decoys may be used to entrap criminals and to present opportunity to one intending to commit a crime, they are not permitted to ensnare the innocent into the commission of a crime when the criminal design originates not with the accused but is conceived in the minds of the officers, and the accused is by persuasion or inducement lured into a criminal act. Newman v. United States (C. C. A.) 299 F. 128; People v. Malone, supra. We are of the opinion that the facts of this case bring it squarely within this rule.
We are cited by respondent to cases involving entrapment in the sale of narcotics and intoxicating liquor, where it was held that the defense of entrapment did not preclude a conviction. In the cases cited, the officers suspected the defendants of being engaged in the business of selling narcotics and liquor and they were induced by the officers to make a sale. There is no objection to such acts as they merely give the supposed offender an opportunity to sell, and there is no unlawful entrapment. Here, however, as above stated, the scheme originated in the minds of the officers, and appellant so far as the record shows was not engaged in selling the instruments involved, nor was he ever suspected of doing so. The officers deliberately planned a scheme to cause or influence appellant to commit a crime so they might arrest and punish him. Under such circumstances the law will not authorize a conviction.
The order and judgment are reversed.
I dissent for the reason that in my judgment the reversal is based, first, on law not applicable to this class of a case; and, secondly, on the assumption of certain essential facts as to the existence of which there is at best a conflict of evidence.
It is doubtless true that where an accused is charged with having committed a crime such as burglary, robbery, theft, or the like, the design to commit which, so the accused claims, originated with the officers of the law and was not conceived in his mind, but that as a result of persuasion or inducement he entered into the enterprise and committed the crime, the doctrine of illegal entrapment is available to him as a defense; and if he is convicted and there is no conflict in the evidence on that issue, he is entitled to a reversal of the judgment, because as said in In re Moore, 70 Cal. App. 483, 233 P. 805, it would be violative of sound public policy and repugnant to good morals to uphold the conviction of a person who, being entirely innocent of any intention to commit a crime, was inveigled into its commission by an officer of the law or by a private detective hired for that purpose. A fair example of a case belonging to the class above mentioned (but which nevertheless was affirmed because of a conflict in the evidence) is People v. Malone, 117 Cal. App. 629, 4 P.(2d) 287, the only California case cited in the majority opinion. The persons there accused testified that a police investigator, whose true identity was not known to them at the time, inveigled them into committing a burglary, the design to commit which originated with the officer and not with them, and that the investigator facilitated in its commission by lending them a truck with which to carry out his plans. But as stated there was a conflict of evidence on that issue and the conviction was affirmed.
Here we are dealing with a case of another class, which under the authorities should be governed by a different rule. See 7 Cal. Jur. 884. It is a case wherein the accused is charged with having illegally possessed and sold certain articles, the possession and sale of which was forbidden by law. And with respect to such cases it has been held in this state for years, by an unbroken line of decisions, that even though the officers of the law originate the plan to bring about the sale and facilitate its consummation by furnishing the money with which the purchase is made, the doctrine of illegal entrapment is not available as a ground for reversal; that a reversal is warranted only when the evidence establishes also, and without conflict, elements of persuasion, inducement or allurement outside the ordinary transaction of purchase and sale between a willing purchaser and a willing vendor. In re Moore, supra; People v. Ramirez, 95 Cal. App. 140, 272 P. 608; People v. Heusers, 58 Cal. App. 103, 207 P. 908; People v. Barkdoll, 36 Cal. App. 25, 171 P. 440; People v. Tomasovich, 56 Cal. App. 520, 206 P. 119; People v. Rodriguez, 61 Cal. App. 69, 214 P. 452; People v. Caiazza, 61 Cal. App. 505, 215 P. 80; People v. Rucker, 121 Cal. App. 361, 8 P.(2d) 938.
In the present case it appears from the evidence that for more than ten years appellant had been engaged in the operation of a business in Oakland dealing in part in the sale of dangerous and deadly weapons, the possession and sale of which was regulated and governed by a state law enacted in the year 1923 (Stats. 1923, p. 695); and admittedly the police department of that city, in pursuance of its law enforcement duty, planned to ascertain whether appellant and others were violating said law, and if they were, to secure the necessary evidence against them so they might be prosecuted therefor; furthermore, that for obvious reasons it employed a person to assist in carrying out such plan who would not be suspected of being a member of said department, and that the police furnished him with the money with which to make the necessary purchases. But the record contains no testimony showing, as charged in the majority opinion, that the officers or their agent persuaded, induced, or lured appellant into making said sale, or that he was innocent of any intention of committing a crime in so doing. On the contrary, there is evidence affirmatively showing that he was at all times ready, able, and in fact eager to make the sale; that not only did he willingly and actively participate in the transaction, but that he well knew from the beginning, as stated by him at the time, that if he participated in the sale of the deadly weapons Forts was seeking to purchase he would be committing a criminal offense, and that he was willing, nevertheless, to take the chance of arrest. In this regard it appears from the testimony given by Forts that when he entered appellant's store and informed appellant that he had been sent there by a friend who had told him he would be able to buy some such weapons there, appellant replied, “You know, young man, it is against the law, but I will take a chance so long as your friend sent you up here.” Appellant then asked Forts how many he wanted and Forts replied “about a dozen.” Appellant stated that “at that time” he did not have that many, but requested Forts to come back later, about noon; and before Forts left appellant asked for a deposit, which, however, was not put up. When Forts returned at noon appellant took a bundle from his showcase, unwrapped it and displayed the three weapons in question, stating that he was able to obtain only three, but that if Forts would come back the next day he would have the others. Forts paid for the weapons, following which appellant tried to interest him in the purchase of some pistols; but no sale thereof was made. Continuing, the evidence shows that after Forts left the store, taking the weapons with him, he met Officer Pardee, under whose direction he was operating; and pursuant to Pardee's instructions Forts immediately returned to the store and began arguing with appellant about the type of weapons he had sold him. While the discussion was going on Pardee and Officer McMorrow entered the store, and appellant immediately dropped the bundle and covered up the weapons. Advancing toward the two men Officer Pardee said, “What is going on here?” and appellant replied: “There is nothing going on here.” Pardee then said: “You covered something with paper on top of the shelf there. What is it?” And appellant replied: “Nothing.” Whereupon Pardee reached over, took the bundle, and exposing the weapons said: “I see now the reason you covered it.” Pardee then asked appellant if he did not know it was against the law to sell such weapons to a citizen, and appellant replied: “Yes, it is against the law, but I took a chance, just the same.” Pardee's testimony as to what occurred after he entered the store is substantially the same as the above except that he stated appellant first admitted knowing it was in violation of law to sell said weapons, and later claimed he had a legal right so to do. Moreover, appellant as a witness in his own behalf made no claim that he was lured or persuaded into the act of selling. He took the position at the trial as on this appeal that he had a lawful right to sell the type of weapon he delivered to Forts; and at the trial he produced a number of witnesses to support such position. It is true, Forts told him he was connected with the shipping industry; and appellant may have believed it; but this circumstance is of little consequence in view of appellant's claim that he had the legal right to sell said weapons to anybody. Even assuming, however, that it might be reasonably inferred from any part of appellant's testimony that the transaction involving the sale of the weapons extended beyond an ordinary sale and tended to prove elements of persuasion and enticement, such testimony could do no more than raise a conflict on the issue of illegal entrapment, which was submitted to the jury as a question of fact under court instructions, the correctness of which appellant expressly concedes; and evidently the members of the jury, as sole judges of the credibility of the witnesses, rejected appellant's story and accepted as true the testimony given by the officers. If follows, therefore, that in any event the conclusion reached by the jury on this issue should be taken as controlling on appeal.
When the facts of this case are compared with those involved in the Moore, Ramirez, Rucker, and Heusers Cases, it becomes apparent that the plan here followed by the police in seeking to enforce the terms of this important statute was no different from the one receiving the sanction and approval of the reviewing courts in those cases; nor any different from the one that has been followed for years in this state by local governmental law enforcement agencies. Moreover, such comparison makes it clear that the case of illegal entrapment, which appellant has sought to establish on this appeal, is no stronger than those attempted to be made out in the cases above cited, and it is far weaker than the one relied on in the Moore Case; and in all of those cases the convictions were sustained.
Finally it may be observed that inasmuch as the question of illegal entrapment is one of fact to be submitted to the jury, it is seldom indeed that a judgment of conviction in a case of this kind has been reversed in this state on that ground; and no such reversal has been cited by appellant on this appeal.
For the reasons stated it is my conclusion that a reversal of the judgment of conviction on the ground of illegal entrapment is not justified.
TYLER, Presiding Justice.
I concur: CASHIN, J.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Cr. 1798.
Decided: July 27, 1934
Court: District Court of Appeal, First District, Division 1, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)