70 Wn.2d 383, THE STATE OF WASHINGTON, Respondent, v. WILLIAM CURRY, JR., Appellant

[No. 38980. Department One.      Supreme Court      January 26, 1967.]

THE STATE OF WASHINGTON, Respondent, v. WILLIAM CURRY, JR., Appellant.*

[1] Criminal Law - Entrapment - Instructions - Evidence in Support. The fact that the person to whom an accused allegedly made an unlawful sale of narcotics was a decoy and an informer does not, by itself, warrant an instruction on entrapment, since a finding of entrapment involves the accused's state of mind, i.e., whether or not he was lured into committing a crime that he had no intention of committing.

Appeal from a judgment of the Superior Court for King County, No. 44167, Robert A. Hannan, J., entered June 10, 1966. Affirmed.

Prosecution for a narcotics violation. Defendant appeals from a conviction and sentence.

Robert A. Castrodale, for appellant. (Appointed counsel for appeal).

Charles O. Carroll and Larry L. Barokas, for respondent.

PER CURIAM. -

A jury found the defendant guilty of a violation of the Uniform Narcotic Drug Act. From the judgment and sentence, based upon the verdict, the defendant appeals.

The evidence showed the sale by the defendant of 13 gelatin capsules of heroin (one of which he was permitted to keep) for $100.

The evidence of the sale and delivery of the heroin was so conclusive that the only reason for reversal urged on this appeal is entrapment, or rather the even narrower ground that the sale being to a decoy or informer an entrapment instruction should have been given, even though the defendant did not testify.

[1] The trial court refused to give an instruction on entrapment, and properly so. The defendant did not testify. There is no evidence as to his state of mind; no evidence to indicate that he was lured or inveigled into making this

* Reported in 422 P.2d 823.

[1] See Ann. 18 A.L.R. 146; Am. Jur. 2d, Criminal Law 144.

 384    GEN. INS. CO. v. ROCKY MT. F. & C. CO. [70 Wn.2d

sale of heroin. The person to whom the sale was made, though a decoy and an informer, merely afforded the defendant the opportunity to make the sale. This does not warrant an instruction on entrapment. State v. Gray, 69 Wn.2d 432, 418 P.2d 725 (1966); Seattle v. Gleiser, 29 Wn.2d 869, 189 P.2d 967 (1948); State v. Berry, 200 Wash. 495, 93 P.2d 782 (1939).

The judgment appealed from is affirmed.