No. 12574 

IN THE 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, in and 

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 lsn 
Mr. 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 is Charles E. Hamlin, Jr,, against whom an Information was filed in the district court of Lewis and Clark County 

before the Hon. Peter G, Meloy, district judge. Relator was 

charged with the criminal sale of LSD, a dangerous drug, on May 

30, 1973. Relator moved to dismiss the Information on the ground 

of entrapment as a matter of law. At the hearing 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 that he came to Helena on May 29, 1973, 

at the request of the Lewis and Clark County sheriff's office 

to assist with the drug problem. Deputy Sheriff DeBree discussed 

the drug problem with Everett and showed him a list of drug 

dealers and pushers in Helena, some mug shots identifying them, and 

was given the names of some of the places that should be checked 

out for illegal narcotics activity. Neither relator's name nor 

picture was contained therein, nor was relator discussed in any 

of the conversation. 

During the late afternoon and evening of May 29 Everett 

checked two locations in Helena for illegal drug activity without 

result and finally, at the suggestion of Deputy Sheriff Debree, 

went to a bar in East Helena arriving there about 12:45 a.m. on 

May 30. At no time up to this point had relator's name been mentioned nor had Everett met relator. 

Shortly after arriving at the East Helena bar Everett went over 

to a table where relator was sitting, bought him a drink, and asked 

him if he knew where Everett could get some ''stash". Relator 
answered, "yes, I can make a phone call, maybe I can get you a 

I I couple lids of marijuana. Relator went to a pay phone in the 

bar, made a phone call, returned to the table and told Everett 

there was nobody at the house he called. Everett said nothing. 

Everett bought relator another drink. Relator then said, "I know 

11 a place we can go that they might have some. Everett said 

"All rightf1, relator said "~ollow me". Everett told relator what 

motel he was staying in and each drove his respective car to this 

motel. Relator parked his car there, got in ~verett's car and 

directed him to a house on Rodney where they might possibly get 

some dope. On the way there relator named another place they 

were 

could probably get some dope, if they/ unsuccessful at the house 

on Rodney. Everett said that would be all right. 

They arrived at the house on Rodney 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. The man 

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 man who originally 

answered the door asked if anyone else wanted any more 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's motel room, Everett pulled out his pistol, ordered 

relator to lie on the floor, and placed him under arrest. 

On the basis of this testimony, Judge Meloy entered an order 

denying relator's motion to dismiss the Information, which included 

a rather detailed rationale of his decision. Here, we note that 

numerous "facts" are stated in relator's brief which are not substantiated by the record before us a.nd therefore cannot be considered 

by this Court. 
Relator then filed the instant proceedings in this Court 

seeking supervisory control to review 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 is whether 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 

trial by motion to dismiss. Section 95-1701, R.C.M. 1947. The 

state concedes that entrapment, if established, 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 contests review of the district court's order by 

supervisory control. 

We hold that Everett's testimony does not establish entrapment 

as a matter of law. Reduced to its essentials, the testimony 

simply shows that Everett bought relator a couple of drinks, 

inquired if relator knew where Everett could get some narcotics, 

and followed relator's lead thereafter. A casual offer to buy 

unaccompanied by pleading, begging or coercing of the accused 

does not constitute entrapment. State v. Harney, - Mont . -9 

499 P.2d 802, 29 St.Rep. 627. Everything that happened after the 

initial solicitation in the East Helena bar was conceived and 

initiated by relator with no more than passive participation by 

Everett, culminating in the procuring and distribution of LSD pills 

to the occupants of the house on Rodney street by relator and 

another . 

Relator argues that where, as here, the law enforcement 

officers have no prior knowledge or suspicion that an individual 

has a propensity to commit a dangerous drug offense and implant 

the idea of committing such crime in his mind, they are in fact 

inducing him to commit a crime he had no intention of committing 
thereby 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 sell LSD pills to himself and other occupants of the 

house on Rodney street in the early morning 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. State v. Karathanos, 158 Mont. 461, 493 P.2d 326. In the 

instant case, the establishment of such defense must await trial 

and resolution by the jury of the factual issues of intent and 

inducement under proper instructions. 

Because this matter is returned to the district court for 

jury trial, a final matter requires comment. To the extent that 

the ruling of the district court may be interpreted to indicate 

that force or coercion is required 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 or by other means, 

coupled with the other requirements of Karathanos is the correct 

rule to be followed in the trial of this case. 

The application for supervisory control is denied. 

Justice 
We Concur: 

Hon. R. D. McPhillips, District 

Judge, sitting for Justice John 

Conway Harrison.