CARTER, J. I adopt as my dissent in this case the able and well reasoned opinion prepared by Mr. Presiding Justice Shinn which was concurred in by Justices Wood and Vallée when this case was before the District Court of Appeal, Second Appellate District, Division Three.
“Dr. Raymond M. Braddock was convicted in a non jury trial of four violations of section 11163, Health and Safety [804]Code,1 consisting of the issuance of four narcotic prescriptions on separate days for one who was not under his treatment. He was granted probation upon condition that he spend nine months in the county jail, his motion for a new trial was denied, and he appeals.
“The case was tried upon the transcript of evidence at the preliminary and some additional testimony at the time of trial. The case of the People rested upon the testimony of one Mantler, an inspector for the Bureau of Narcotic Enforcement, State of California. Defendant offered no evidence. Therefore, the evidence is unconflicting.
“Defendant urges the defense of entrapment and also claims there was a material variance in that the information charged that the medicine was prescribed to E. J. Mantler, whereas the proof showed that it was prescribed for a fictitious person, ‘Julia Bates.’
“Simply stated, the rule as to entrapment is that the defense is valid when the intent to bring about the commission of the unlawful act originates in the mind of the entrapping person and the accused is lured into commission of an offense he would not otherwise have committed in order that he can be apprehended and prosecuted. (People v. Hall, 133 Cal.App. 40 [23 P.2d 783].)
“Mantler had himself introduced to Dr. Braddock by one Donald Grimes who, he testified, was a narcotic addict whom he had known for about a year. (There was no evidence that Grimes was known to the doctor to be a narcotic addict.) Grimes took Mantler to Dr. Braddock's residence and introduced him to the doctor as ‘Roy Bates.’ Mantler said he hoped the doctor would take care of his wife, to whom he gave the fictitious name of ‘Julia M. Bates,’ and he gave a false address for her. The doctor said he was supposed to see the patient and asked if she could be brought to him. The doctor asked what kind of medicine she used and Mantler said she had used all different kinds in the past two years. After a conversation about the doctor’s dog and his cat, they entered the doctor’s house and the doctor asked what it was Mantler wanted, whether his wife used Methadon and Mantler replied mostly Methadon or Demerol. A prescription was written and Mantler paid the doctor $15. [805]During this time a man named Thomas came to the front door and Grimes went outside and spoke with him. Mantler testified Thomas was a narcotic addict in Los Angeles, but there was no evidence that the doctor was aware of that fact or even knew of the appearance of Thomas. Ten days later Mantler returned. He and the doctor visited in a friendly manner and in the conversation Mantler said he had been lucky in an unlawful poker game. He said his wife was not ‘doing so good,’ that she had run out of medicine but he had something for an emergency. The doctor asked if his wife gave trouble when she was short of medicine and Mantler said: ‘She very nearly ran me up the chimney of the house on occasions.’ The doctor wrote on his prescription book, ‘T.B.’ and said: ‘What else is wrong with her, I have forgotten what you said the last time’ and Mantler said: ‘Well, she had an old hysterectomy a couple of years ago.’ Mantler paid the doctor $10. About ten days later he went to the doctor again, and on another visit ten days later, when the doctor asked how he was getting along, Mantler told him that things were ‘pretty tough.’ Although Mantler testified that on the first occasion he did not tell the doctor what was wrong with his wife, it appeared from his cross examination that he had stated that she had ‘T.B.’ During the several visits the conversations were on a friendly basis and the doctor addressed Mantler as ‘Roy.’ Upon the second visit he asked Mantler to let him know when he could call upon ‘ Julia Bates ’, at her home, and upon different occasions inquired how she was getting on. On one occasion they watched a world series ball' game on television, and upon the occasion of the second visit Mantler offered the doctor $20, but he refused to take more than $10. After Mantler obtained the first prescription it was known to other inspectors in the enforcement office that he had obtained it by false representations to the doctor that ‘Julia Bates’ was his wife and was in need of drugs. Upon Mantler’s fourth visit defendant was arrested by Mantler and three other inspectors who seized all his prescription books and records.
“The only question which requires an answer may be stated as follows: When a narcotic officer conceives a plan to entrap a physician into a violation of the law, has himself introduced to the physician under an assumed name, represents that he has a sick wife who is using Methadon or Demerol (trade names), makes excuses for not bringing her to the doctor’s office when told he should do so, ignores a [806]request by the doctor that he call upon her, and obtains prescriptions in a fictitious name given as that of his wife, may the doctor be lawfully convicted of violation of the law which forbids prescribing a narcotic for one not under his treatment? The question describes the case of Dr. Braddock and our answer is a negative.
“It is scarcely necessary to remark that the agent won the confidence of the doctor, who was soon calling him ‘Boy’ and making friendly inquiries concerning the supposed wife. He appeared as a man who was burdened with a sick wife, for whom he generously provided the drugs for the relief of her distress, when she was unable to visit the doctor. So the doctor issued the prescriptions for one not under his treatment, and as a consequence stands convicted of four counts of felony. But let us see what the agent did: He conceived the plan of inducing the doctor to commit a crime; he persuaded the doctor to issue false and fraudulent prescriptions and became accessory to four misdemeanors (§ 11165)2; he made false and fraudulent representations, a felony under section 111703; he gave a false name and a false address for the pretended wife, a felony under section 11170.54. This was entrapment. In all our searching we have not found a case in which a physician was made the victim of such deception. We cannot say that this is the first time a presumably law-abiding physician has been induced by false representations of a law enforcement officer to issue a prescription unlawfully, although we have been unable to discover another one. This satisfied us not only that such methods have not been found necessary in policing the medical profession in prescribing narcotics, but also that the employment of fraud and deception in the [807]entrapment of physicians has been very generally and properly scorned.
“There is, of course, much more involved here than the simple question whether Dr. Braddoek violated the law. He stood mute, as was his right, and thus admitted the truth of Mantler’s testimony. It is not because of a claim of innocence that he relies upon the defense of entrapment, but because it is the policy of the law not to punish violations initiated and induced by others for the purpose of bringing about a prosecution.
“If we were to uphold the conviction of Dr. Braddoek it would mean that we were approving the unlawful enforcement of the law and giving a free hand to law enforcement officers to use not only deceitful means, but unlawful means, to entice physicians, and others as well, to violate the law. The courts have consistently refused to temporize with such fraud, deceit and direct violation of statutory law as the record here discloses. The agent provocateur, so despised that he has been given no name in our language and can claim no place in our society, had best have the door shut against him whenever he appears. Gur courts have given no encouragement to his hateful practices, no foothold in our field of law enforcement from which to extend his contaminating influence.
“It was said in Sorrells v. United States, 287 U.S. 435 [53 S.Ct. 210, 77 L.Ed. 413, 418, 26 A.L.R. 249] : ‘The Federal courts have generally approved the statement of Circuit Judge Sanborn in the leading case of Butts v. United States (C.C.A. 8th) 18 A.L.R. 143, 273 Fed. 38, 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 commit it,” ’ and in the concurring opinion of Justices Roberts, Brandéis and Stone: ‘ There is common agreement that where a law officer envisages a crime, plans it, and activates its com[808]mission by one not theretofore intending its perpetration, for the sole purpose of obtaining a victim through indictment, conviction and sentence, the consummation of so revolting a plan 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. . . .
“ ‘The doctrine rests, rather, bn 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. Quite properly it may discharge the prisoner upon a writ of habeas corpus. Equally well it may quash the indictment or entertain and try a plea in bar. 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. 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.’
“It has been the settled policy of the courts to condemn and repudiate unlawful enforcement of the law. We shall refer to only a few of the many cases. One in which the accused was entrapped into procuring and selling a narcotic is Cline v. United States, 20 F.2d 494 (Eighth Circuit). A government narcotic agent arrested an addict but promised to release him if he ‘made a case’ for the agent. The addict, pretending to be greatly in need of the drug, persuaded a friend to induce a chauffeur to obtain morphine for him. The friend received the morphine from the chauffeur, paid him $5 and when he delivered the morphine to the addict in exchange for $5, was arrested and convicted in a jury trial. It was held on appeal that the evidence sustained only one [809]conclusion, namely, that the agent used the addict to trap the defendant.
“In United States v. Healy, 202 F. 349 (District Court, Montana) the accused unlawfully sold liquor to an Indian who was not known by him to be such, but who was used by government officers as a decoy. After conviction the judgment was set aside, the court saying: ‘Though the seller has violated the statute, he was the passive instrument of the government, and his is a blameless wrong for which he cannot be justly convicted. . . . The practice cannot be tolerated, and a conviction for an offense so procured cannot stand. ’
“In United States v. Eman Mfg. Co., 271 F. 353 (District Court, Colorado), a government agent wrote the defendant enclosing $3 and requesting a case of a preparation claimed to be mislabeled. His purpose was to initiate a prosecution for an unlawful shipment in interstate commerce. Defendant, having made the shipment, was prosecuted and it was held, on the stipulated facts, ‘ that in the interests of a sound public policy the defendant should be found not guilty and discharged. ’
“In United States v. Lynch, 256 F. 983, (District Court, New York) the Military Intelligence Department caused one Fancher to demand money for his influence in the award of a government contract and when money was offered to him by the defendant Lynch the latter was arrested and prosecuted for offering a bribe. The court said that under such circumstances the government was estopped from prosecuting on the ground that it caused and created that of which complaint was made. A verdict of acquittal was directed.
“In United States v. Echols, 253 F. 862 (District Court, Texas), a military police officer persuaded the accused to procure him a drink in order that he might arrest him therefor. The prosecution was dismissed although the defendant had offered to plead guilty. The court upheld the defense of entrapment and stated as follows (p. 863) : ‘In what is here stated there is no intention to excuse persons who yield to temptation, or to hamper or limit the acts of officers of the law in detecting crime by any means or device; but the zeal to detect crime ought not to be so vigorous as to induce officers to originate and procure the commission of the very offenses which they are enjoined to prevent. No faithful officer of the law will be hampered, nor will any criminal be aided, by the observance of this rule. Its disregard, however, may, and likely will, subject to persecution and conviction weak [810]and spineless persons, who find it hard to resist temptation; and the government, through the zeal for conviction on the part of the arresting officer, may become the means of the ruin of its citizens, instead of their safeguard and protection. Such a possible result at once establishes the unimpeachable wisdom of the rule of public policy here enunciated, and requires that the plea of guilty, which the defendant offered to make, be by the court refused, and the case dismissed, which is accordingly now done.’
“United States v. Mathues, 22 F.2d 979 (District Court, Pennslyvania), was a similar case which stated and applied the rule of entrapment.
“The People contend that the case is the ordinary one of an officer appearing as a willing buyer of narcotics from one who is willing to sell to anyone offering himself as a customer. Cases of this sort are legion, conviction are the rule and reversals the rare exception. (People v. Makovsky, 3 Cal.2d 366, 369 [44 P.2d 536] ; People v. Lindsey, 91 Cal. App.2d 914, 916 [205 P.2d 1114] ; cf. People v. Gallagher, 107 Cal.App. 425 [290 P. 504] ; Cline v. United States, supra, 20 F.2d 494.) But this is because one who is willing to peddle narcotics is necessarily a criminal at heart, looking for no inducement to break the law other than the money he expects to receive. It is an inescapable inference in such cases that a willingness to violate the law existed and that the act of violation was self induced. Persuasion to make a sale does not taint the transaction with the vice of entrapment unless it induces the commission of an act that would otherwise not have been committed. (People v. Makovsky, supra, 3 Cal.2d 366, 370; cf. Butts v. United States, 273 F. 35 (Eighth Circuit 1921); People v. Gallagher, supra, 107 Cal.App. 425.) If this were such a case it would occupy but little of our time, for we would applaud and encourage every energetic and legitimate effort to stamp out the fearful and detestable traffic in narcotics.
“In Sam Yick v. United States (C.C.A. 9), 240 F. 60 [153 C.C.A. 96], at p. 65, the court stated: ‘While it may be true that the mere aiding of one in the commission of a criminal act by a government officer or agent does not preclude the conviction of the party committing the crime, yet where the officers of the law have incited the party to commit the crime charged and lured him on to its consummation, the law will not authorize a verdict of guilty.’ It is, of course, conceded that officer Mantler conceived the plan to induce Dr. Braddock [811]to commit a crime. The remaining question is whether, in the language of the Sam Yick case, the officer ‘lured him on to its consummation,’ and we shall see from a discussion of the undisputed evidence that Dr. Braddock was ‘lured on’ from start to finish.
‘ ‘ The question here is whether it could reasonably have been inferred from the facts in evidence that Dr. Braddock was willing to write prescriptions for anyone willing to pay a price, and that he was not induced and persuaded to write them by the representations of the officer. Such conclusions, in our opinion, would have been based on nothing more than suspicion. Mantler kept up his deception to the last. Nothing occurred to cast doubt upon his representations. The doctor asked to see ‘Julia Bates’ at his office and offered to call upon her at her home, but Mantler succeeded in persuading him that she could not be brought to the office and avoided the suggestion that the doctor call upon her. It was not shown that Dr. Braddock had ever before issued a prescription for a person who was not under treatment by him, or had otherwise violated the narcotic law. Mantler made no effort to obtain a prescription for himself. He evidently believed deception would be necessary and he played his role straight through. He was the agent of the state through whom the state acted. It should not be permitted the state to escape responsibility for the acts of its agent by merely saying that although he spoke falsely he was not believed, and that the doctor was not deceived by his falsehoods into doing something he would not otherwise have done. Every reasonable inference is to the contrary. That the doctor believed the representations was evidenced by the fact that he acted upon them. That they were understood by Mantler to be the effective means of accomplishing his purpose was evidenced by the fact that he persisted in them and improved upon them to the point of arousing the doctor’s compassion. If there was an intermixture of cupidity, this would not alter the legal aspects of the case. There is no pretense that the defendant was moved by purely charitable motives, or that he did not know he was violating the law, but this does not militate against the defense of entrapment. Defendant admitted to the officers, immediately after his arrest, that he had written the prescriptions because he needed the money, but this means only that he was the more easily persuaded. The defense of entrapment is not to be denied to the weak and needy. They [812]are the very ones who become the victims of persuasion and deceit, and who deserve protection.
“Defendant claims only that he was persuaded to violate the law and that the evidence supports his claim to the exclusion of any other reasonable conclusion. In answering this contention the People call attention to the testimony of Mantler that he had previously questioned defendant over the telephone and accused him of prescribing for addicts, which accusation defendant resented. Also, mention is made of the fact that Mantler testified that Grimes and Thomas were addicts, although it was not shown that defendant had knowledge of that fact or that he even knew the man Thomas. To give serious consideration to such self serving testimony and vaguely suspicious circumstances as incriminating evidence would only magnify the error of the conviction. The mere presence of Grimes and Thomas was not any sort of evidence that defendant was a law violator. If they were ‘planted’ there by Mantler, as they no doubt were, they could have been called as witnesses if they would have testified that defendant had prescribed for them unlawfully. It is therefore to be presumed that had they been called to testify as to their relations with defendants, if any, their testimony would have been adverse to the People. We therefore utterly reject the argument that as against this presumption the court could regard the presence of these men as an incriminating or even a suspicious circumstance. Moreover, the officers had seized and had possession of defendant’s narcotic records. None was offered in evidence. The assertion of Mantler in the telephone conversation that defendant had been prescribing for addicts was not evidence. Defendant made no admission. His prescription books, which were required to contain copies of all prescriptions issued within two years (Health & Saf. Code, §11166.10), were in the hands of the• officers. It was to be presumed that if they had been produced in court they would not have disclosed anything favorable to the prosecution.
“This case takes on added significance from the fact that in the present day courts and juries must place great reliance upon the testimony of officers who are charged with the duty of enforcing the narcotic laws. It is of common occurrence that convictions are had, and are affirmed on appeal, upon the uncorroborated testimony of such officers, even in the face of strong denials by the accused. We do not doubt that confidence in the veracity and motives of the officers is generally [813]well deserved, and deem it somewhat more than unfortunate that any officer should stoop to falsehood and deceit in order to bring about the commission of a crime for the purpose of obtaining a conviction. It is shocking to learn that an officer of the law whose worth depends so much upon a high regard for the truth and a just regard for the rights of citizens should conceive and carry out a plan involving so much duplicity, and even more so that he should be assisted by other officers who were aware of the deception. That the narcotic laws are vigorously and systematically enforced we know from the multitudes of arrests that are made and the convictions that are had, but it is better that some offenders should go unpunished than that overzealous officers should be permitted to indulge in practices which would tend to demoralize the law enforcement agencies and impair the confidence and trust of the people and the courts which it is necessary for such agencies to possess in order to be most effective.
‘ ‘ This is clearly a case in which there was an entire absence of evidence and reasonable inference that the accused would have violated the law had he not been induced to do so by false representations and persuasion of a law enforcement officer. We do not believe that any conviction has been sustained on appeal upon such a record.
“In conclusion, we quote from Woo Wai v. United States, 223 F. 412, 415 [137 C.C.A. 604] : ‘Some of the courts have gone far in sustaining convictions of crimes induced by detectives and by state officers. This is notably so of the decision in People v. Mills, 178 N.Y. 274 [70 N.E. 786, 67 L.R.A. 131]. But it is to be said, by way of distinguishing such cases from the case at bar, that in all of those cases the criminal intention to commit the offense had its origin in the mind of the defendant.’
“If the conviction of Dr. Braddock should be affirmed it would be the only case to be found in the books in which a conviction was allowed to stand upon undisputed evidence that an officer of the law conceived the commission of a crime, used misrepresentation, deceit and unlawful methods to induce its commission, and when all the evidence and the reasonable inferences were that but for the machinations of the officer the unlawful act would not have been committed.
“It is unnecessary to consider the question of variance between the information and the proof.
[814]‘ ‘ The judgment and order denying a new trial are reversed. ’ ’
For the reasons stated in the foregoing opinion I would reverse the judgment.
Schauer, J., concurred. Appellant’s petition for a rehearing was denied January 14, 1954.
Carter, J., and Schauer, J., were of the opinion that the petition should be granted.
‘§ 11163. Narcotic not to be prescribed etc., for person not under treatment. Except in the regular practice of his profession, no person shall prescribe, administer, or furnish, a narcotic to or for any person who is not under his treatment for a pathology or condition other than narcotic addiction, except as provided in this division.’ ”
“ ‘§11165. False or fictitious prescription. No person shall issue a prescription that is false or fictitious in any respect.’ ”
“ ‘§11170. Acts and statements prohibited. (1) No person shall obtain or attempt to obtain narcotics, or procure or attempt to procure the administration of or prescription for narcotics, (a) by fraud, deceit, misrepresentation, or subterfuge; or (b) by the concealment of a material fact.
“ ‘ (2) No person shall make a false statement in any prescription, order, report, or record, required by this division.
“ ‘ (3) No person shall, for the purpose of obtaining narcotics, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, or other authorized person.
“ ‘ (4) No person shall affix any false or forged label to a package or receptacle containing narcotics.’ ”
“ ‘ § 11170.5. False name and address. No person shall, in connection with the prescribing, furnishing, administering, or dispensing of a narcotic, give a false name or false address.’ ”