The opinion
CHAPPELL, J.
(dissenting). On the 8th day of December, 1933, this court handed down an opinion modifying and affirming this case.
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- At the time the original opinion was handed down, I reluctantly approved the same on account of the reduction of the punishment.
Upon the filing of petition for rehearing and reargument, I have again carefully examined the record and the evidence and am of the opinion that the petition for rehearing should be granted and the case reversed and remanded for a new trial.
The witness Pittman testified that he and Commissioner Arnot decided they would stop road machinery men from attempting to bribe them, and that they would entrap defendant and make an example of him. The witness Arnett testified to practically the same state of facts.
The defendant testified that, on his second visit to the home of the witness Pittman, Pittman advised him he was a candidate for re-election, had a hard campaign ahead of him, and needed a campaign contribution, and requested that defendant advance him $100.
The evidence of Pittman, Arnot, and defendant is that defendant was invited to meet with the commissioners on a certain Monday, when the question of the purchase of the machinery would be considered and defendant would be given an opportunity to quote prices; that defendant was not present on that day, but appeared the next day; that Pittman was sitting in another road machine man’s car, talking to him; that later Pittman approached defendant and inquired if he was prepared to do what he had agreed to, and that, if he was, they would purchase a certain road maintainer from him; that Pittman told him the $100 would have to be cash on the barrel head; that defendant had no money with him, and was obliged to drive about twenty-five miles to another town to obtain the money; that on defendant’s return Pittman
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got in the car with him and they drove some distance, where defendant passed to Pittman the $100 in cash; that Pittman told defendant he would have to divide the money with Arnot; that during this conversation nothing was said about a bribe or the payment of this money to in-i fluence a sale of the road maintainer; that, when Pittman and defendant returned to the courthouse, they went in and the commissioners proceeded to hold a meeting; that they prepared the necessary order for the maintainer and officially purchased the same; that, when this transaction was completed, Pittman tossed fifty dollars to Arnot and took fifty for himself, telling the other commissioner he was not in on the deal; and that by previous arrangements the sheriff stepped in, arrested defendant, and took possession of the money.
This court in a number of cases has held that it is contrary to public policy to' sustain a conviction where defendant isf induced to commit the crime by the acts of public officers. Rider v. State, 53 Okla. Cr. 393 , 12 Pac. (2d) 552 ; Warren v. State, 35 Okla. Cr. 430 , 251 Pac. 101 ; Shouquette v. State, 25 Okla. Cr. 169 , 219 Pac. 727 .
To the same effect are: Scott v. State, 70 Tex. Cr. R. 57 , 153 S. W. 871 ; U. S. v. Healy (D. C.) 202 F. 349 ; Smith v. State, 61 Tex. Cr. R. 328 , 135 S. W. 154 ; U. S. v. Wray (D. C.) 8 F. (2d) 429.
In the case at bar, there are some significant circumstances: Pittman and Arnot were candidates for reelection. Pittman did have a hard campaign, and was defeated. A.t Pittman’s solicitation, defendant visited him in his home to talk about this matter, rather than at the courthouse where the commissioners had their office. At the time fixed to make the deal defendant did not appear. The next day, when he did appear, he had no money with
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him, and evidently did not come prepared to make any payment. Both Pittman, and Arnot say they decided to entrap defendant. According to Pittman’s own evidence, he asked defendant if he had come prepared to do what he agreed to. .When advised by defendant that he was not prepared, Pittman told him it would have to be cash on the barrel head. Pittman waited around and postponed the meeting of the commissioners until defendant could go and procure the cash, all of which was done at the suggestion of Pittman.
It is fairly inferred from the record that Pittman expected to accept the $100 as a campaign contribution, but later concluded that it would be better for him and more likely to result in his re-election if he could convince the people of his district that he was an honest man who could not be bribed, and that having come to that conclusion, he decided to go another route wihout telling defendant that the payment was not to be a campaign contribution but a bribe to secure the sale of the road maintainer.
The record disclosing that the commission of the offense was suggested by Pittman and participated in by him — not only in receiving the money for himself, but also in receiving money for Arnot — and. their statements that they decided to entrap defendant, brings the case clearly within the authorities above cited.
For the reasons stated, the petition for rehearing should have been granted and the case reversed and sent back for another trial, and the trial court required to instruct on entrapment.