No. 12574 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

THE STATE OF MONTANA, ex 

### re1 CHARLES E. HAMLIN, JR., Relator,

THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF MONTANA, inand For the County of Lewis and Clark, and the HONORABLE PETER G. MELOY, Presiding Judge, Respondents.

ORIGINAL PROCEEDING:
Counsel of Record: For Relator: Robert J. Sewell, 

### Jr., argued, Helena, Montana For Respondents: Thomas F. Dowling, County Attorney, Helena, Montana Leif B. Erickson, Deputy County Attorney, argued,

Helena, Montana

Submitted: September 

### 28, 1973 Decided: 

### ~CT 

### 9

# -lgn Filed: 

### 9 a

# lsnMr. Justice Frank I. Haswell delivered the Opinion of the Court.

This 

### is an original application for supervisory control to review and annul an order of the district court refusing to dismiss a criminal charge against relator. Relator isCharles E. Hamlin, 

### Jr,, againstwhom an Information was filed inthe district court of Lewis and Clark County before the Hon. Peter G, Meloy, districtjudge. Relatorwas charged with the criminal sale of LSD, a dangerous drug, on May 30, 1973. Relator moved todismiss the Information on the ground of entrapment asa matter of law. Atthehearing on the motion, relator examined Merritt Everett, a deputized undercover agent of the sheriff's office, whose testimony furnished the factual background of events leading to the arrest and charge against relator. Everett testified thathe came toHelena on May 29, 1973, atthe request of the Lewis and Clark County sheriff's office to assistwith the drug problem. Deputy Sheriff DeBree discussed the drug problem with Everett and showed him a 

### list of drug dealers and pushers inHelena, some mug shots identifying them, and
was given the names of some of the places that should be checked out for illegalnarcotics activity. Neither relator's name nor picturewas contained therein, nor was relator discussed inany of the conversation. During the lateafternoon and evening of May 29 Everett checked two locations inHelena for illegaldrug activitywithout result and finally, atthe suggestion of Deputy Sheriff Debree, went toa bar inEast Helena arriving there about 12:45 a.m. on May 30. Atno time up tothispoint had relator's name been mentioned nor had Everett met relator. Shortlyafter arriving atthe East Helena bar Everett went over to a tablewhere relator was sitting, bought him a drink, and asked him ifhe knew where Everett could get some ''stash". Relator

### answered, "yes, 

### I canmake a phone call,maybe 

### I can get you a
II 

### couple lids ofmarijuana. Relatorwent to a pay phone in the bar,made a phone call,returned to the table and told Everett therewas nobody at the house he called. Everett said nothing. Everett bought relator another drink. Relator then said, 

### "I know
11 

### a placewe can go that they might have some. Everett said "All rightf1, relator said "~ollow me". Everett told relator what motel hewas staying in and each drove his respective car to this motel. Relator parked his car there,got in ~verett'scar and directed him to a house on Rodneywhere theymight possibly get
some dope. 

### On theway there relator named another place they were could probably get some dope, if they/unsuccessful at the house
on Rodney. Everett said thatwould be all right. They arrived at the house onRodney street at about 2:35 a.m. They got out of the car,knocked on the door and asked the man who answered if he had anything to smoke or weed to sell. Theman said no,but he had some acid. Relator introduced Everett to this man, Everett paid him $2.00, got a pill, asked for a drink of water and pretended to take the pill. Other persons in the room appeared "starry-stoned on acid" to Everett. The manwho originally answered the door asked if anyone else wanted anymore acid and everybody, including Everett, said "yes". Relator and the man left the house, returned about ten minutes later,and distributed
some acid to the others, including Everett. Everett and relator left the house about 5:30 

### a.m. and returned to the motel where Everett was staying and where relator's
car was parked. Later in the morning relator returned armed to ~verett'smotel room,Everett pulled out his pistol, ordered relator to lie on the floor,and placed him under arrest. On thebasis of this testimony, JudgeMeloy entered an order denying relator's motion to dismiss the Information,which included a rather detailed rationale ofhis decision. Here,wenote that
numerous "facts" are stated in relator's brief which arenot substantiatedby the record before us a.ndtherefore cannotbe considered by this Court.Relator then filed the instant proceedings inthis Court seeking supervisory control toreview and annul the order of the district court. The matter came on for adversary hearing before at this Court andlthe conclusion thereof was taken under advisement. The single issue for determination 

### iswhether the Information should be dismissed on the ground that the defense of entrapment has been established as a matter of law. At the outset 

### we observe that any defense capable of determination without trial of the general issues may be raised before trialby motion to dismiss. Section 95-1701, R.C.M. 1947. The stateconcedes that entrapment, ifestablished, 

### is a complete defense to the charge against relator. Relator acknowledges the truth of Everett's testimony for the purpose of the motion. Neither party contestsreview of the district court's orderby supervisory control. We hold that Everett's testimony does not establish entrapment
asa matter of law. Reduced to 

### its essentials, the testimony simply shows that Everett bought relator a couple of drinks, inquired ifrelator knew where Everett could get some narcotics, and followed relator's lead thereafter. A casual offer tobuy unaccompanied by pleading, begging or coercing of the accused does not constitute entrapment. Statev. Harney, Mont

# . - -9 499 P.2d 802, 

### 29 St.Rep. 627. Everything that happened after the initial solicitation inthe East Helena bar was conceived and initiatedby relatorwith no more than passive participationby Everett, culminating inthe procuring and distribution of LSD pills to the occupants of the house on Rodney streetby relator and another

# . Relator argues thatwhere, ashere, the law enforcement officershave no prior knowledge or suspicion that an individual has a propensity tocommit a dangerous drug offense and implant the idea of committing such crime inhis mind, they are infact inducing him tocommit a crime he had no intention of committingthereby establishing the defense of entrapment. Whatever may be said of this contention as an abstract statement of the law, the testimony here falls far short of establishing as a matter of law that Everett implanted the idea that relator and another should procure and sellLSD pills tohimself and other occupants of the house on Rodney street in the earlymorning hours of May 30. We repeat the three essentials of the defense of entrapment: in (1) Criminal intent or design originating/the mind of the police officer or informer; 

### (2) absence of criminal intent or design originating in the mind of the accused; and (3) luring or inducing the accused into committing 

### a crime he had no intention of committing. Statev. Karathanos, 158Mont. 461, 493 P.2d 326. In the instant case, the establishment of such defense must await trial and resolutionby the jury of the factual issues of intent and inducement under proper instructions. Because this matter 

### isreturned to the district court for jury trial, a finalmatter requires comment. To the extent that the ruling of the district court may be interpreted to indicate that force or coercion 

### isrequired to establish entrapment, the opinion accompanying the ruling should be clarified. A luring
or inducement of the accused to commit a crime he had no intention of committing, whether by force and coercion orby other means, coupled with the other requirements of Karathanos 

### is the correct rule tobe followed in the trial of thiscase. The application for supervisory control 

### is denied.

Justice

### We 

### Concur:

Hon. 

### R. D. McPhillips, District Judge, sitting for Justice John Conway Harrison.