The opinion
Concurring Opinion
DeBruler, J.
I vote to affirm this conviction, but like Justice Prentice, I cannot concur in the overruling of recent precedent. Precedents should not be discarded without good and sufficient reason. The case before us provides no basis for discarding the rule, first established in Walker v. State, (1970) 255 Ind. 65 , 262 N.E.2d 641 , and Smith v. State, (1972) 258 Ind. 415 , 281 N.E.2d 803 , and most recently applied by this Court in Shipp v. State, (1976) 265 Ind. 108 , 350 N.E.2d 619 , in July of this year, requiring the State to prove probable cause to entrap when the defense of entrapment is raised. The State clearly met that burden in the trial court in this case. In this appeal the State has not even sought to have the holding of these prior cases overruled. It has provided no argument or demonstration to support the majority finding that the requirement of the State to establish entrapment *641 probable cause is a serious impediment to its legitimate covert operations, and I believe that it is not and has not been.
However, the majority has not been dissuaded by argument, and certain comments in the majority opinion generate concern over the future viability of the defense of entrapment and warrant comment. Under the law as it exists today, the State must prove that “the party was not innocently lured and enticed to commit the illegal act.” Gray v. State, (1967) 249 Ind. 629 , 231 N.E.2d 793 . This law remains unchanged after today’s opinion. If in the particular case, the criminal design originated with the police, and the aid and inducement offered by the police was an efficient cause of the accused’s criminal conduct, then it would not be possible to conclude that the conduct of the police merely “revealed the criminal design” already conceived and active in the mind of the accused. Sorrells v. United States, (1932) 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 . There is a suggestion in the majority opinion, as it has interpreted Sorrells and the new Penal Code, that the State does not have the burden of showing that the police artifices only exposed a previously existing criminal design in the mind of the accused which he was willing and in a state of preparedness to carry out. As for myself, without the benefit of briefing and argument on the point, I do not regard either that case or the Penal Code as relieving the State of that very burden and supplanting it with the requirement that the State merely show that the accused was not totally innocent in his attitude toward the proposition offered by the police. If any degree of concurrence by the accused in criminal design at the time it was first laid before the accused is sufficient to rebut the defense of entrapment, then the defense of entrapment is void of substance. Such I believe is not the case.
Prentice, J., concurs.