HOLMES, Circuit Judge.
The appellant was convicted on counts 2, 3, and 4, of a four-count indictment, of three violations of the Marijuana Tax Act of 1937, as amended, 26 U.S.C.
The errors relied on for reversal are alleged to arise out of the failure of the court to grant the defendant a fair trial, consisting of erroneous and misleading instructions, prejudicial comments by the trial judge in the presence of the jury, misbehavior of the government's attorney, illegal evidence introduced over the objections of the defendant, and the complete failure of the government to present any evidence disproving the defendant's plea of entrapment. In our opinion, none of these assignments of error is sufficiently substantial and meritorious to warrant reversal except the one with reference to instructions to the jury on the subject of the defendant's plea of entrapment.
We do not approve of all the questions asked witnesses by either the court or the district attorney, but the objectionable ones were withdrawn, did no appreciable harm, and are not likely to be repeated on another trial. The assignment with reference to "the complete failure of the government to present any evidence disproving the defendant's plea of entrapment" seems to us to be wholly without merit. The proof of entrapment is weak, and the proof to the contrary is strong; but that question was not for the court below, and is not for this court. The matter of entrapment was an issue for the jury, and should have been correctly submitted to the jury, regardless of what either the lower court or this court may think about appellant's guilt.
The defendant requested the following instruction, Tr. 134, which we think should have been given:
Instead, the court gave its own instruction, pp. 128-129 of transcript, as follows:
The latter instruction contained elements of a good charge coupled with elements of a bad one. It gave the jury a hypothetical situation that might excuse the defendant, but said that if the sale or transfer was induced for a money consideration, there was no entrapment. There was no evidence of entrapment by any scheme or device referred to by the court in its charge except a sale or transfer induced for a money consideration, in which event the court charged that there was no entrapment. In our opinion this was reversible error. No authority is cited to sustain this exception, and we have found none. Entrapment is a valid, positive defense, in certain circumstances, the invocation of which necessarily assumes that the act charged was committed. 22 C.J.S., Criminal Law, § 45.
The gist of the defense of entrapment is the conception of the crime by the government's agent for the purpose of prosecuting the defendant, the latter not having any previous intention to commit it. A money consideration or any other adequate motive incited by the agent to induce the crime may constitute entrapment, provided the conception of the criminal design originated with the government's agent, and was planted by him in the mind of the accused, who otherwise would not have committed the offense; but, when it is suspected that a crime is being committed, for instance, in the sale of narcotics, and the question is as to who is the guilty party, traps may be laid by affording the suspect an opportunity to sell the same in order to catch the guilty person. A suspected criminal may be offered an opportunity to transgress in such manner as is usual therein, but extraordinary temptations or inducements may not be employed by officers of the government. The charge requested by the appellant fairly stated the law, and should have been given instead of the oral equivocal instruction that left the jury without any definite applicable guide in considering the evidence on the subject of entrapment. Sorrels v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Butts v. United States, 8 Cir., 273 F. 35, 38, 18 A.L.R. 143; United States v. Wray, D.C., 8 F.2d 429; Swallum v. United States, 8 Cir., 39 F.2d 390; Morei v. United States, 6 Cir., 127 F.2d 827; Demos v. United States, 5 Cir., 205 F.2d 596; United States v. Sawyer, 3 Cir., 210 F.2d 169, 170.
Not only was there substantial evidence to sustain the verdict, but, after his arrest, the defendant admitted his guilt to several apparently credible