Defendant appeals from his conviction, by a jury, for unlawfully selling a narcotic drug, specifically, he was found to have sold cannabis sativa (marijuana) to one Gene Dawson on November 16, 1970, in Salt Lake City, Utah, in violation of Sec. 58-13a-2, U.C.A. 1953.
The record reveals that Eugene K. Dawson was working as an undercover agent for the Salt Lake Narcotics Squad. On the evening of the alleged sale, Dawson discussed with Officer Hoffman the prospect of making a "buy." The officer searched Dawson, gave him a ten-dollar bill, and drove him to the vicinity of defendant's residence. Dawson found defendant, with whom he was acquainted, changing a tire. Dawson assisted him and inquired whether defendant had some marijuana; the response was affirmative. They proceeded into the house; defendant went into a bedroom and emerged seconds later with a "lid" of marijuana in a plastic sack. Dawson paid the defendant with the ten-dollar bill and departed. He returned to the policeman's car and tendered the evidence. The city chemist identified the contents of the bag as cannabis sativa. The evidence indicated that Dawson had been convicted of armed robbery in 1969, and was on probation, and that he had been a narcotics user. Kasai asserted the affirmative defense of entrapment and the trial court duly instructed the jury in this regard.
On appeal, defendant contends that the trial court erred in denying a motion for a directed verdict of acquittal on the ground that the uncorroborated testimony of informer Dawson was insufficient to support a conviction for an unlawful sale of a narcotic drug.
In this jurisdiction, only the testimony of an accomplice need be corroborated, Sec. 77-31-18, U.C.A. 1953. An accomplice refers to one who is or could be complice refers to one who is or could be charged as a principal with the defendant on trial, i.e., one who is liable to prosecution for the identical offense charged against the defendant on trial.
Defendant further urges that the trial court erred when it denied a motion for a mistrial, after witness Dawson, during cross-examination, made reference to another crime than the one with which defendant was being tried. During the course of cross-examination, defense counsel queried:
Defendant urges that the foregoing response so inflamed the jury that they could not thereafter render a just verdict.
A review of the record reveals that the cross-examination, wherein the alleged prejudicial response was elicited, was for the purpose of establishing the defense of entrapment.
Defendant asserts that he was a victim of entrapment and was therefore deprived of due process of law as accorded by the Fourteenth Amendment of the Constitution of the United States.
In United States ex rel. Hall v. People of State of Illinois,
Finally, has the defendant established his defense of entrapment as a matter of law?
Entrapment is not established, as a matter of law, where there is any substantial evidence in the record from which it may be inferred that the criminal intent to commit the particular offense originated in the mind of the accused.
The judgment of the trial court is affirmed.
TUCKETT, HENRIOD and ELLETT, JJ., concur.
CROCKETT, J., does not participate herein.