The opinion
BRETT, Judge
(concurring in results) :
It is defendant’s first proposition that the trial court erred in failing to direct a verdict in favor of defendant on the grounds that entrapment was established as a matter of law. In support of this contention, defendant cites Sherman v. United States, 356 U,S. 369, 78 S.Ct. 819 , 2 L.Ed. 2d 848 (1958), Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932), Beasley v. State, Okl.Cr., 282 P.2d 249 (1955), and Striplin v. State, Okl.Cr., 499 P.2d 446 (1972). Defendant only mentions Striplin in passing and its dismantlement as the controlling authority does not *201 leave defendant’s proposition without sound legal basis. Even though Sherman has not been made binding on the states through the Fourteenth Amendment, it has been cited and followed by this Court previously. Riddle v. State, Okl.Cr., 373 P.2d 832, 842 (1962); Riddle v. State, Okl.Cr., 374 P.2d 634, 639 (1962). If it is the intent of the majority opinion to reject Sherman as authority in this jurisdiction, then it follows that our prior decisions resting on Sherman have been overruled. Such a result is somewhat perplexing in that we are not advised exactly what rule or reasoning in Sherman is inapplicable.
Sherman was based on the United States Supreme Court’s decision in Sorrells v. United States, supra, recognizing the defense of entrapment. The Sorrells decision has been expressly recognized and followed by this Court previously. Jones v. State, Okl.Cr., 321 P.2d 432, 441 (1958); Boyd v. State, Okl.Cr., 290 P.2d 160, 167 (1955); Riddle v. State, Okl.Cr., 373 P.2d 832, 842 (1962). The only new aspect to Sherman was a finding by the Court that the defense of entrapment had been established as a matter of law thus reversing a narcotics sale conviction even though the jury had been instructed on entrapment.
I agree that the facts of Sherman and the instant case are quite different. In Sherman , the evidence was undisputed and clearly showed the criminal conduct charged against defendant was the product of the creative activity of law-enforcement officials. In the instant case, the evidence is in dispute and does not clearly show defendant’s act was the product of law-enforcement officials. Thus, the trial court did not err in overruling defendant’s motion for directed verdict as entrapment was not established as a matter of law. It was a question for the jury. As this Court has previously held where there is a conflict in the testimony, the court does not err in refusing defendant’s request for a directed verdict if the question of entrapment is submitted to the jury with proper instructions. Riddle v. State, Okl.Cr., 373 P.2d 832 (1962). Therefore, in my view, it is not necessary, under the facts of this case, to reject Striplin, supra, and Sherman, supra, as the majority opinion appears to do, in order to reach the results achieved. I concur in the results reached.