State v. Curry

70 Wn.2d 383 (1967)

422 P.2d 823

THE STATE OF WASHINGTON, Respondent, v. WILLIAM CURRY, JR., Appellant.[*]

No. 38980.

The Supreme Court of Washington, Department One.

January 26, 1967.

Robert A. Castrodale, for appellant. (Appointed counsel for appeal).

Charles O. Carroll and Larry L. Barokas, for respondent.

PER CURIAM:

A jury found the defendant guilty of a violation of the Uniform Narcotic Drug Act. From the judgment and sentence, based upon the verdict, the defendant appeals.

The evidence showed the sale by the defendant of 13 gelatin capsules of heroin (one of which he was permitted to keep) for $100.

The evidence of the sale and delivery of the heroin was so conclusive that the only reason for reversal urged on this appeal is entrapment, or rather the even narrower ground that the sale being to a decoy or informer an entrapment instruction should have been given, even though the defendant did not testify.

[1] The trial court refused to give an instruction on entrapment, and properly so. The defendant did not testify. There is no evidence as to his state of mind; no evidence to indicate that he was lured or inveigled into making this *384 sale of heroin. The person to whom the sale was made, though a decoy and an informer, merely afforded the defendant the opportunity to make the sale. This does not warrant an instruction on entrapment. State v. Gray, 69 Wn.2d 432, 418 P.2d 725 (1966); Seattle v. Gleiser, 29 Wn.2d 869, 189 P.2d 967 (1948); State v. Berry, 200 Wash. 495, 93 P.2d 782 (1939).

The judgment appealed from is affirmed.

[*] Reported in 422 P.2d 823.