U.S. Supreme Court SORRELLS v. U.S., 287 U.S. 435 (1932)

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reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.

The Circuit Court of Appeals reached the conclusion that the defense of entrapment can be maintained only where, as a result of inducement, the accused is placed in the attitude of having committed a crime which he did not intend to commit, or where, by reason of the consent implied in the inducement, no crime has in fact been committed. 57 F.(2d) page 974. As illustrating the first class, reference is made to the case of a sale of liquor to an Indian who was disguised so as to mislead the accused as to his identity. United States v. Healy (D.C.) 202 F. 349; Voves v. United States (C.C.A.) 249 F. 191. In the second class are found cases such as those of larceny or rape where want of consent is an element of the crime. Regina v. Fletcher, 8 Cox C.C. 131; Rex v. McDaniel, Fost. 121, 127, 128; Connor v. People, 18 Colo. 373, 33 P. 159, 25 L.R.A. 341, 36 Am.St.Rep. 295; Williams v. State of Georgia, 55 Ga. 391; United States v. Whittier, 5 Dill. 35, Fed. Cas. No. 16,688; State v. Adams, 115 N.C. 775, 20 S.E. 722. There may also be physical conditions which are essential to the offense and which do not exist in the case of a trap, as, for example, in the case of a prosecution for burglary where it appears that by reason of the trap there is no breaking. [Footnote 2] Rex v. Egginton, 2 Leach, C.C. 913; Regina v. Johnson, Car. & Mar. 218; Saunders v. People, 38 Mich. 218; People v. McCord, 76 Mich. 200, 42 N.W. 1106; Allen v. State, 40 Ala. 334, 91 Am.Dec. 477; Love v. People, 160 Ill.

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should be added that in many cases in which the evidence has been found insufficient to support the defense of entrapment the availability of that defense, on a showing of such facts as are present here, has been recognized. [Footnote 5] The federal courts have generally approved the statement of Circuit Judge Sanborn in the leading case of Butts v. United States, supra, as follows: 'The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. Here the evidence strongly tends to prove, if it does not conclusively do so, that their first and chief endeavor was to cause, to create, crime in order to punish it, and it is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to com-

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pose gathered from the whole act would be satisfied by a more limited interpretation.' [Footnote 7] See, to the same effect, Heydenfeldt v. Daney Gold & S. Min. Company, , 638; Carlisle v. United States, 16 Wall. 147, 153; Oates v. National Bank, 100 U.S. 239; Chew Heong v. United States, 112 U.S. 536, 555, 5 S.Ct. 255; Holy Trinity Church v. United States, , 459-462, 12 S.Ct. 511; Hawaii v. Mankichi, 190 U.S. 197, 212-214, 23 S. Ct. 787; Jacobson v. Massachusetts, 197 U.S. 11, 39, 25 S. Ct. 358, 3 Ann.Cas. 765; United States v. Jin Fuey Moy, 241 U.S. 394, 402, 36 S.Ct. 658; Baender v. Barnett, 255 U.S. 224, 226, 41 S.Ct. 271; United States v. Chemical Foundation, 272 U.S. 1, 18, 47 S.Ct. 1.

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deception to obtain evidence of the commission of crime. Resort to such means does not render an indictment thereafter found a nullity nor call for the exclusion of evidence so procured. [Footnote 9] But the defense here asserted involves more than obtaining evidence by artifice or deception. Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Federal and state courts have held that substantial proof of entrapment as thus defined calls for the submission of the issue to the jury and warrants an acquittal. The reasons assigned in support of this procedure have not been uniform. Thus it has been held that the acts of its officers estop the government to prove the offense. The result has also been justified by the mere statement of the rule that where entrapment is proved the defendant is not guilty of the crime charged. Often the defense has been permitted upon grounds of public policy, which the courts formulate by saying they will not permit their process to be used in aid of a scheme for the actual creation of a crime by those whose duty is to deter its commission.

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ought not to be permitted by any self respecting tribunal. Equally true is this whether the offense is one at common law or merely a creature of statute. Public policy forbids such sacrifice of decency. The enforcement of this policy calls upon the court, in every instance where alleged entrapment of a defendant is brought to its notice, to ascertain the facts, to appraise their effect upon the administration of justice, and to make such order with respect to the further prosecution of the cause as the circumstances require.

This view calls for no distinction between crimes mala in se and statutory offenses of lesser gravity; requires no statutory construction, and attributes no merit to a guilty defendant; but frankly recognizes the true foundation of the doctrine in the public policy which protects the purity of government and its processes. Always the courts refuse their aid in civil cases to the perpetration and consummation of an illegal scheme. Invariably they hold a civil action must be abated if its basis is violation of the decencies of life, disregard of the rules, statutory or common law, which formulate the ethics of men's relations to each other. Neither courts of equity nor those administering legal remedies tolerate the use of their process to consummate a wrong. [Footnote 11] The doctrine of entrapment in criminal law is the analogue of the same rule applied in civil proceedings. And this is the real basis of the decisions approving the defense of entrapment, though in statement the rule is cloaked under a declaration that the government is estopped or the defendant has not been proved guilty.

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construction will be required in the case of other or more serious crimes is not before the court. Thus no guide or rule is announced as to when a statute shall be read as excluding a case of entrapment; and no principle of statutory construction is suggested which would enable us to say that it is excluded by some statutes and not by others.

The doctrine rests, rather, on a fundamental rule of public policy. The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention. [Footnote 12] Quite properly it may discharge the prisoner upon a writ of habeas corpus. 13 Equally well may it quash the indictment or entertain and try a plea in bar. [Footnote 14] But its powers do not end there. Proof of entrapment, at any stage of the case, requires the court to stop the prosecution, direct that the indictment be quashed, and the defendant set at liberty. [Footnote 15] If in doubt as to the facts it may submit the issue of entrapment to a jury for advice. But whatever may be the finding upon such submission the power and the duty to act remain with the court and not with the jury.

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only because of instigation and inducement by a government officer. To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction. It is to discard the basis of the doctrine and in effect to weigh the equities as between the government and the defendant when there are in truth no equities belonging to the latter, and when the rule of action cannot rest on any estimate of the good which may come of the conviction of the offender by foul means. The accepted procedure, in effect, pivots conviction in such cases, not on the commission of the crime charged, but on the prior reputation or some former act or acts of the defendant not mentioned in the indictment.

The applicable principle is that courts must be closed to the trial of a crime instigated by the government's own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.

The judgment should be reversed and the cause remanded to the District Court with instructions to quash the indictment and discharge the defendant.

Mr. Justice BRANDEIS and Mr. Justice STONE concur in this opinion. Footnotes

Footnote 1 See, also, Regina v. Williams, 1 Car. & K. 195; People v. Mills, 178 N.Y. 274, 70 N.E. 786, 67 L.R.A. 131; People v. Ficke, 343 Ill. 367, 175 N.E. 543.

Footnote 2 See note of Francis Wharton to Bates v. United States (C.C.) 10 F. 92, 97-99.

Footnote 3 Compare Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 66 A.L.R. 376.

Footnote 4 See, also, United States v. Adams (D.C.) 59 F. 674; Sam Yick v. United States (C.C.A.) 240 F. 60, 65; United States v. Echols (D.C.) 253 F. 862; Peterson v. United States (C.C.A.) 255 F. 433; Billingsley v. United States (C.C.A.) 274 F. 86, 89; Luterman v. United States (C.C.A.) 281 F. 374, 377; United States v. Pappagoda (D.C.) 288 F. 214; Ritter v. United States (C.C.A.) 293 F. 187; Di Salvo v. United States (C.C.A.) 2 F.(2d) 222; Silk v. United States (C.C.A.) 16 F.(2d) 568; Jarl v. United States ( C.C.A.) 19 F.(2d) 891; Corcoran v. United States (C.C.A.) 19 F.(2d) 901; United States v. Washington (D.C.) 20 F.(2d) 160; Cline v. United States ( C.C.A.) 20 F.(2d) 494; United States ex rel. Hassel v. Mathues (D.C.) 22 F.( 2d) 979; Driskill v. United States (C.C.A.) 24 F.(2d) 525; Ybor v. United States (C.C.A.) 31 F.(2d) 42; Robinson v. United States (C.C.A.) 32 F.(2d) 505, 66 A.L.R. 468; Vaccaro v. Collier (D.C.) 38 F.(2d) 862; Patton v. United States (C.C.A.) 42 F.(2d) 68; and cases collected in note in O'Brien v. United States (C.C.A.) 51 F.(2d) 674, 678, including decisions of state courts. Compare Rex v. Titley, 14 Cox C.C. 502; Blaikie v. Linton, 18 Scottish Law Rep. 583; London Law Times, July 30, 1881, p. 223; People v. Mills, 178 N.Y. 274, 70 N.E. 786, 67 L.R.A. 131; State v. Smith, 152 N. C. 798, 67 S.E. 508, 30 L.R.A.(N.S.) 946; Bauer v. Commonwealth, 135 Va. 463, 115 S.E. 514; State v. Gibbs, 109 Minn. 247, 123 N.W. 810, 25 L.R.A.( N.S.) 449; State v. Rippey, 127 S.C. 550, 122 S.E. 397. See, also, 18 A.L. R. 146 annotation; 28 Columbia Law Rev. 1067; 44 Harv. Law Rev. 109; 2 So. Cal. Law Rev. 283; 41 Yale Law J. 1249; 10 Va. Law Rev. 316; 9 Tex. Law Rev. 276.

Footnote 5 See cases cited in note 4.

Footnote 6 See Chicago, B. & Q.R. Co. v. McGuire, 219 U.S. 549, 565, 31 S.Ct. 259; Green v. Frazier, 253 U.S. 233, 240, 40 S.Ct. 499.

Footnote 7 In Hawaii v. Mankichi, 190 U.S. 197, 214, 23 S.Ct. 787, 789, the court referred with approval to the following language of the Master of the Rolls (afterwards Lord Esher) in Plumstead Board of Works v. Spackman, L.R. 13 Q.B.D. 878, 887: "If there are no means of avoiding such an interpretation of the statute' (as will amount to a great hardship), 'a judge must come to the conclusion that the legislature by inadvertence has committed an act of legislative injustice; but, to my mind, a judge ought to struggle with all the intellect that he has, and with all the vigor of mind that he has, against such an interpretation of an act of Parliament; and, unless he is forced to come to a contrary conclusion, he ought to assume that it is impossible that the legislature could have as intended."

Footnote 8 See O'Brien v. United States (C.C.A.) 51 F.(2d) 674, footnote 1, page 678.

Footnote 9 Compare Olmstead v. United States, , 48 S.Ct. 564, 66 A.L.R. 376.

Footnote 10 Casey v. United States, 276 U.S. 413, 48 S.Ct. 373.

Footnote 11 See Hannay v. Eve, 3 Cranch, 242, 247; Bank of United States v. Owens, 2 Pet. 527, 538; Bartle v. Nutt, 4 Pet. 184, 188; Hanauer v. Doane, 12 Wall. 342, 349; Trist v. Child, 21 Wall. 441, 448; Hazelton v. Sheckells, 202 U.S. 71, 26 S.Ct. 567, 6 Ann.Cas. 217; Crocker v. United States, 240 U.S. 74, 78, 36 S.Ct. 245.

Footnote 12 Compare Gambino v. United States, 275 U.S. 310, 319, 48 S.Ct. 137, 52 A.L.R. 1381.

Footnote 13 See United States ex rel. Hassel v. Mathues (D.C.) 22 F.(2d) 979.

Footnote 14 Compare United States v. Pappagoda (D.C.) 288 F. 214; Spring Drug Co. v. United States (C.C.A.) 12 F.(2d) 852.

Footnote 15 In United States v. Echols (D.C.) 253 F. 862, upon the tender of a plea of guilty, the court of its own motion examined the prisoner and the officers concerned in his arrest; and being satisfied that these officers had instigated the crime, declared that public policy required that the plea be refused and the case dismissed. In United States v. Healy (D.C.) 202 F. 349, a judgment and sentence were set aside and the defendant discharged upon the court's ascertaining that the conviction was procured by entrapment.