Writ of error to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant, Joseph Hatch, was convicted of the sale of narcotics in a bench trial before the Criminal Court of Cook County. The trial judge imposed a sentence of ten years to ten years and one day imprisonment, and from the judgment entered on this sentence defendant appeals.
On June 25, 1958, one Marzell Spurlark, a narcotics addict and a paid informer working on a per diem basis for the Federal Narcotics Bureau, was contacted by Agent Garrette Wimpey of the Bureau. Agent Wimpey, with whom Spurlark had worked before, told the latter that he wanted to make a "contact" but did not specify Hatch. Hatch and Spurlark lived across the street from each other and had been good friends for a period of about seven years since they first met as inmates at the House of Correction where each was serving time for possession of narcotics. Spurlark knew that Hatch was also an addict and informed Wimpey that they had once "shot up" together.
Agent Wimpey testified that at about 4:30 p.m. he went to the vicinity of defendant's home, followed by another Federal agent, and there met Spurlark and Hatch. Hatch testified that as he was leaving his home he was suddenly hailed by Spurlark who was sitting with Wimpey in a car parked in front of the house. In any event, Spurlark introduced Wimpey as a friend of his who wanted some "stuff." Spurlark, called as the court's witness, testified that he told the defendant that Wimpey was also an addict. This Wimpey denied, testifying that he told the defendant that the purchase was "strictly business." Wimpey said to the defendant: "Sonny (Spurlark) tells me you can do me so [sic] good." Wimpey testified that Hatch immediately replied, "Yes, I can take care of you. What do you want?" The agent further testified that he told Hatch he wanted one ounce of heroin and that Hatch said it would cost $140 plus $26 for him. Hatch, however, testified that he said he didn't know whether he could get the narcotics but told Wimpey that he would try. The informer's version closely resembles defendant's.
The threesome then proceeded in Wimpey's car to 53rd and Prairie in Chicago where the defendant got out and walked away. He returned several minutes later and, according to Wimpey's testimony, announced that his supplier had to go get the stuff and that it would be about thirty minutes. The three men drove around Chicago for ninety minutes and then returned to 53rd and Prairie. Hatch again left the car, returning shortly to say that it would be another few minutes.
The defendant again visited his source of supply several minutes later and, according to his testimony, was accompanied by Spurlark. Spurlark denied that he left the car until after the sale was consummated. Nevertheless, it is agreed that when the defendant returned to the auto he got into the back seat with the informer Spurlark who then purportedly said, "My man wants to see what he's getting. Let's go someplace too [sic]." Agent Wimpey, who was alone in the front seat, drove off and parked in an alley. He testified that upon stopping he turned around and saw the defendant pass to Spurlark a small envelope which it was stipulated contained heroin. Spurlark immediately handed the envelope to Wimpey.
At this point there is a serious conflict in testimony as to how the money for the heroin passed. Agent Wimpey testified that he gave $140, the price agreed upon, directly to defendant, and that Hatch then asked for five dollars for "his trouble." (This, defendant urges, is improbable in view of the fact of Wimpey's earlier testimony that the parties had already agreed upon $140 plus $26 for Hatch.) Hatch, however, testified that when the agent offered him some money for arranging the sale he said, "He don't owe me nothing"; that the agent gave $145 to Spurlark, and that only subsequently did he accept five dollars from the informer. Spurlark testified that the agent gave Hatch nothing extra for the sale. The agent testified that after paying the $140 plus five dollars to Hatch, Hatch and the informer left the car together. After the transfer of the money, according to Hatch, Spurlark accompanied him to his source of supply to make payment for the delivery.
During the next two months Spurlark attempted to get defendant to make further sales but the latter consistently refused to do so. Hatch was not arrested until August 22nd, which was almost two months after the incident in question. Agent Wimpey stated that the reason for the delay in arrest was that he left on vacation soon after the incident; that this was followed by his military leave; and that upon his return on about August 1st he believed that the defendant was hiding out on a "shoplifting rap." He admitted that during this time he did not make any attempt to arrest the defendant, that he did not even visit the defendant's home to attempt to locate him. Moreover, Wimpey further testified that no new information was gained through the arrest of the defendant, that the man who he believed was defendant's source of supply had been arrested, but that the agent was already aware of this source of supply and that the incident leading to defendant's arrest was not the beginning of the knowledge that he had of the dealings of Hatch's supplier.
The sole defense relied on by the defendant at the trial as well as on appeal was that the facts established an entrapment as a matter of law.
Entrapment has been defined by the Supreme Court of the United States in the following terms: "Entrapment is the conception and planning of an offense 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." Sorrells v. United States, 287 U.S. 435, 454; Mr. Justice Roberts concurring. This definition of entrapment was expressly adopted by the Supreme Court of Illinois in People v. Strong, 21 Ill.2d 320, 324, 172 N.E.2d 765. *fn1
The elements of the defense of entrapment were set out in People v. Outten, 13 Ill.2d 21, 147 N.E.2d 284, where the Supreme Court stated at page 23:
"As a general rule, entrapment can exist only when the criminal intent originates in the mind of the entrapping officer, and if such intent arose in the mind of the accused there is no entrapment, though officers may afford an opportunity for the commission of the offense and use artifice and strategem to apprehend one actually engaged in a criminal enterprise. It is not an instigation to perpetrate a crime if an officer, having reason to believe another is committing a crime, furnishes an opportunity for the commission of the offense, when the purpose is, in good faith to secure evidence against a guilty person and not to induce an innocent person to violate the law."
The policy behind allowing the defense of entrapment was well stated by Chief Justice Warren of the United States Supreme Court in the important case of Sherman v. United States, 356 U.S. 369. It was there stated at page 372:
"The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, `a different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.'"
See also Comment, Administration of the Affirmative Trap and the Doctrine of Entrapment: Device and Defense, ...