
    G. C. STEVENS v. STATE.
    No. A-8042.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 282.)
    A. J. Stevens, for plaintiff in error.
    
      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of selling one pint of intoxicating liquor, and was sentenced to pay a fine of $50 and be confined in the county jail for thirty days. Prom which judgment and sentence the defendant has appealed.

The testimony on behalf of the state is, in substance, as follows: K. W. Greer and Charles Johnson, who were officers, gave two $1 bills to- George Applegate and asked him to go- and try to buy some whisky from the defendant and others. George Applegate testified he went to where the defendant Avas, in company with Lee Holder and Clyde Heady, and bought one pint of whisky and paid him for the same Avith the two $1 bills the officers had given him; he returned to- the cemetery where the officers were Avait-ing for him and delivered the pint of whisky to the officers. The other parties Avith Applegate testified, in substance, the same as Applegate.

The defendant denies he sold any Avhisky to Apple-gate, but admits that Applegate and the parties who were with him came to where he Avas at his mother-in-law’s and tried to buy some wine or whisky, and that Applegate was indebted to him in the sum of $5 borrowed money, and defendant states he told Applegate, if he had money to buy Avhisky, he Avanted him to- pay him what he o-Aved him; that Applegate gave him the two- $1 bills and he accepted it as part payment on the $5 indebtedness of Applegate. The wife of the defendant and the mother-in-law testified they were eating dinner when the prosecuting witness came to the house and the defendant went out and talked to them, but he never left the premises, and did not go- away, as stated by tbe prosecuting' witness, and get whisky for them. Some of tbe witnesses against tbe defendant had been convicted of crime prior to testifying in this case, and tbe prosecuting witness admits that when they started out that morning they bad three pints of wbisky and claim they broke them Avben they saw tbe officers.

Several errors have been assigned by tbe defendant and urged as grounds for reversal. Tbe first error assigned by tbe defendant is:

“That tbe court erred in overruling tbe motion of plaintiff in error for a new trial.”

This assignment covers all tbe errors assigned and urged by tbe defendant. One of tbe main questions urged by tbe defendant is that tbe prosecuting witnesses were promised immunity for tbe wbisky they bad if they would assist tbe officers in entrapping tbe defendant. The' defendant urges that tbe law of entrapment is a good defense in a criminal action, and cites, in support of bis contention, Warren et al. v. State, 35 Okla. Cr. 430, 251 Pac. 101. Paragraph 2 of the syllabus is as follows:

“Where one is charged with a crime and depends on the theory that tbe acts constituting an essential element of tbe alleged offense were instigated by officials or persons acting under their direction, tbe test of criminality is, Did the officers or those acting under them first suggest the commission of the criminal act or lure tbe accused into the commission of such acts or perform any of tbe essential acts constituting the offense? If so, a sound public policy will not uphold a conviction. But, if tbe first suggestion for tbe commission of the crime came from tbe defendant, and all of the essential acts constituting the crime were done by him, then tbe fact that tbe offi-icers or those acting under them, for tbe purpose of entrapment, furnished an opportunity and lent aid to tbe commission of the offense less than tbe performing of some essential act constituting the offense, or were present with and apparently assisting in the commission of the crime, constitutes no defense.”

The appellate courts do not look with favor upon the practice of officers hiring men to go out and entrap parties by buying whisky from them or causing them to commit a .crime and then returning and informing the officers of what they had done. However, the state is not precluded from prosecuting a defendant for selling liquor because the purchase wats made by the officers for the purpose of instituting the prosecution against them. Caveness v. State, 3 Okla. Cr. 729, 109 Pac. 125.

In the case of De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, paragraph 4-c of the syllabus says:

“It is not improper for officers, charged with the duty of enforcing the laws, to employ detectives to ferret out and procure evidence for the prosecution of parties who violate the law.”

The holding of the court in De Graff v. State, supra, has been adhered to until the present time. After a careful reading and study of the record we find a conflict in the evidence which conflict was settled by the jury against the defendant. The instructions of the court correctly stated the law applicable to the facts in the case. The defendant was accorded a fair and impartial trial. No reason is apparent why the judgment should be disturbed.

The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.  