People v. Gallagher

THE COURT.

The appellant, Matthew Gallagher, was charged with having had morphine in his possession in violation of the state law regulating the sale and use of poisons, and upon trial before a jury was convicted. The accusation also charged and appellant admitted two prior convictions of felony, for having in a similar manner violated the same state law. Therefore, the maximum penalty under the present conviction was ten years’ imprisonment in the state penitentiary.

At the trial appellant did not deny having had possession of said narcotic, but asserted that such possession was brought about solely through the direct activities and at the instigation of state narcotic agents, for the very purpose of entrapping him, and that immediately thereupon they arrested him for the offense. In" his defense, therefore, he claimed the benefits of the doctrine of entrapment and offered an instruction upon that subject, which the court refused to give, and he now contends that such refusal con"stitutes reversible error. Respondent does not challenge the soundness of the legal principles set forth in said instruction, but contends that the evidence was insufficient ■ as a matter of law to warrant the court in giving such instruction, and that therefore such refusal did not amount to error.

We are of the opinion that the contention made by respondent is not supported by the record. From it the fol

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lowing facts appear: Appellant had been a narcotic addict for about twenty-five years, and at the time this transaction took place was daily consuming about $3 worth of drug. About 7:25 o’clock on the evening of October 22, 1929, accompanied by his wife, x who is also an addict, appellant drove in his automobile to a point on Natoma Street on the west side of 15th Street, between Howard and Mission Streets, in San Francisco, and stopped along the curb a short distance behind another automobile which was standing there. Appellant alighted, walked around the rear end of his machine and proceeded up the sidewalk. Upon reaching a point immediately opposite the parked automobile, a state narcotic agent named Whipple jumped out of the parked automobile and, with pistol in hand, which he pointed at appellant, told appellant he was under arrest. Sitting in the automobile with Whipple was another state narcotic agent named Dundas, and a man referred to in the record as “Blackie” Dali, who was not only a drug addict but a well-known peddler of drugs, and who had just been released on parole from the federal penitentiary at Leavenworth, Kansas. Appellant was searched and a tobacco can was found in his possession containing eight cubes of morphine wrapped in paper. Whipple then proceeded to search appellant’s wife and appellant’s automobile, but found nothing further incriminating. Afterwards the agents proceeded to appellant’s apartment, which was also searched, but nothing incriminating was found therein.