State v. Jackson

90 S.E.2d 507 (1955)

243 N.C. 216

STATE v. C. W. JACKSON.

No. 363.

Supreme Court of North Carolina.

December 14, 1955.

*509 William B. Rodman, Jr., Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Harvey W. Marcus, Raleigh, Member of Staff, for the State.

C. T. Kennedy and W. H. Steed, Thomasville, for defendant, appellant.

PARKER, Justice.

The defendant assigns as error the refusal of the Court to give his prayer for instructions No. 2 to the effect that, if the jury was satisfied from the evidence that the defendant delivered the cheque to the General Finance Company under an agreement with Huntley, its President, that the cheque would not be presented for collection, that this would not be a placing of the cheque in circulation, and the jury should return a verdict of Not Guilty.

The defendant testified: "I didn't have any reserve at the First National Bank. I didn't do any business there." According to the defendant's testimony he wrote the $8,260 cheque, delivered it to General Finance Company and knew at the time of making and delivery of this cheque that he had neither funds on deposit in, or credit with, the First National Bank of Thomasville, North Carolina, to pay this cheque when presented there for payment. The State's evidence tended to show that on 6 April 1954 the defendant had on deposit in the First National Bank of Thomasville, North Carolina, the sum of $48.99, and on 7 April 1954 the sum of $328.99. Such being the case, if he had an understanding with Huntley, as he contends, this would not entitle him to a verdict of Not Guilty. State v. Levy, 220 N.C. 812, 18 S.E.2d 355, is directly in point against the defendant's contention.

The nuisance to trade and commerce of worthless cheques, condemned by G.S. § 14-107, is "the giving of a worthless check and its consequent disturbance of business integrity." State v. White, 230 N.C. 513, 53 S.E.2d 436, 437.

The defendant contends that he was entrapped by George L. Huntley, President of General Finance Company, into making, uttering, issuing and delivering this $8,260 cheque to General Finance Company, and assigns as error the refusal of the Court to give to the jury his prayer for special instructions that the acts and language of Huntley constituted entrapment, and was a complete defense.

The making, uttering, issuing and delivering of a worthless cheque is a crime regardless of the consent of any one. This is not a case where the criminality of the act is affected by a question of consent, as for instance, larceny, State v. Adams, 115 N.C. 775, 20 S.E. 722, or an assault on the person, State v. Burnett, 242 N.C. 164, 87 S.E.2d 191; State v. Nelson, 232 N.C. 602, 61 S.E.2d 626. See Annotations: 18 A.L.R. 146; 66 A.L.R. 473; 86 A.L.R. 263.

We are squarely faced with this question for decision: Is the defense of entrapment available to the defendant in a worthless cheque prosecution for the reason that the defendant allegedly was induced to make, utter, issue and deliver this cheque by a third person unconnected with the State?

This Court said in State v. Love, 229 N. C. 99, 101, 47 S.E.2d 712, 714: "Our own court has not found it exigent in any cited case we can find to give a formal definition of the defence [entrapment] as applied here." In this case the Court quotes this excerpt from Sorrells v. U. S., 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413, 86 A.L.R. 249: "`Entrapment is the conception and planning of an offence by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.'" This excerpt is not taken from the opinion of the Court by Hughes, C. J., but from a separate opinion by Roberts, J., concurred in by Brandeis and Stone, JJ. In the Love case our Court further says: "The Federal *510 conception of entrapment is not necessarily binding upon us, for the question is much broader than the cited application in the Sorrells case, from which the appellants quote." We have examined the appellants' brief, and they have not quoted from the Sorrells case the part this Court quoted, nor does it bear any relation to it.

It seems to be the Federal rule that entrapment exists only when the government agents induce and originate the criminal intent of a defendant. Sorrells v. U. S., supra; U. S. v. Lindenfeld, 2 Cir., 142 F.2d 829 (cases cited); U. S. v. Sherman, 2 Cir., 1952, 200 F.2d 880, 882.

In U. S. v. Sherman, supra, the Court, after stating that the U. S. Supreme Court has not said anything since then to qualify what it said in Sorrells v. United States, supra, states: "In Sorrells v. U. S., supra, all the Court agreed as to the meaning of inducement: it was that someone employed for the purpose by the prosecution had induced the accused to commit the offense charged, which he would not have otherwise committed."

In Polski v. U. S., 8 Cir., 33 F.2d 686, 687, the Court said: "The very heart of the doctrine of entrapment is that the government itself has brought about the crime."

The Supreme Court of Appeals of Virginia has approved the definition of entrapment as given in Sorrells v. U. S., supra, in Ossen v. Com., 187 Va. 902, 48 S.E.2d 204; Falden v. Com., 167 Va. 549, 189 S.E. 329, which definition was set forth in our case of State v. Love, supra, and is quoted before in this opinion.

In State v. Del Bianco, 96 N.H. 436, 78 A.2d 519, 521, the Court said: "If officers of the law induce an innocent person to instigate a crime which he would not otherwise commit, this is entrapment and may constitute a defense to the crime charged. Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413."

In People v. Finkelstin, 98 Cal. App. 2d 545, 220 P.2d 934, 940, it is said: "Entrapment exists only where the official has conceived and planned the crime for one who would not have done it but for the allurement, deception or persuasion of the officer." To the same effect, People v. Nordeste, 125 Cal. App. 2d 462, 270 P.2d 530.

Where the offense charged is a crime regardless of the consent of any one, it seems that an essential element of entrapment is that the acts charged as crimes were incited directly or indirectly by officers or agents of the government or state: that it is not entrapment that one has been induced by some other than a person acting for the government or state to commit a crime. That is certainly the rule in the Federal Courts. In addition to the State cases, cited above, we cite the following cases in support: People v. Carlton, 83 Cal. App. 2d 475, 189 P.2d 299; Lee v. State, 66 Okl.Cr. 399, 92 P.2d 621; Peery v. State, 138 Tex.Cr.R. 155, 134 S.W.2d 283; State v. Berry, 200 Wash. 495, 93 P.2d 782, 792; Black's Law Dictionary, 4th Ed., Definition of Entrapment. See also Vol. 14A Words and Phrases, Entrapment, where a long list of cases of like import is given, and State v. Love, supra.

It would be unconscionable and contrary to public policy and good morals to punish a man for the commission of an offense of which he would not have been guilty, in thought or deed, and would not have committed, if he had not been entrapped into committing the crime by officers or agents of the state or government, which is prosecuting him. On the other hand, to hold that entrapment is a defense under such circumstances when the inducement comes from a third party unconnected with the State, would gravely imperil the proper enforcement of the criminal law. For instance, if two defendants committed burglary, and one could satisfy the jury, that he was entrapped into committing the crime by his codefendant, he would go scot free.

In the case at bar the State was the prosecutor. Huntley had no connection *511 with the State. The record is devoid of any evidence tending to establish entrapment of the defendant.

The defendant assigns as error the overruling of his motion for arrest of judgment made at the May Term after the return of the verdict of guilty, and the overruling of a similar motion renewed at the June Term. The defendant's contention, as stated in his brief, is that he was charged disjunctively and alternately in the warrant in such a manner as to leave uncertain what is relied on as an accusation against him.

The defendant's motion for arrest of judgment on the ground specified by him comes too late. To raise the question for decision the defendant should have made a motion to quash before entering a general plea. State v. Puckett, 211 N.C. 66, 189 S.E. 183; State v. Wilson, 121 N.C. 650, 28 S.E. 416. In State v. Jones, 242 N.C. 563, 89 S.E.2d 129, we considered a bill of indictment allegedly in the alternative on a motion to quash, made before a general plea was entered.

There is no merit to this assignment of error, if a motion to quash had been timely entered. Chair City Motors was merely the defendant's trade name. The warrant charges the offense almost in the exact words of G.S. § 14-107. In a prosecution under this statute the State must prove that the maker of the cheque had neither sufficient funds on deposit in, nor credit with, the bank on which the cheque was drawn to pay it on presentation. State v. Edwards, 190 N.C. 322, 130 S.E. 10.

There is no variance between allegation and proof here, as the defendant contends.

We have discussed all the assignments of error brought forward and discussed in defendant's brief. All the assignments of error are overruled.

In the trial below we find

No error.