The opinion
*633 ON STATE’S MOTION FOR REHEARING
WOODLEY, Judge.
The so-called Texas rule stated in 12 Tex. Jur. p. 309, Sec. 63, is supported by the case of Davis v. State, 70 Tex. Cr. R. 524 , 158 S. W. 288 , where this court declined to recognize entrapment as a defense to the offense of offering to bribe an assistant county attorney.
While the distinction may or may not be valid, there is authority to the effect that the defense of entrapment cannot be successfully interposed for an offense against public welfare such as bribery and accepting a bribe by a public official. State v. Daugherty, 93 Atlantic 98 (New Jersey).
As stated by Judge Harper in the Davis case, “Considerable legal hairsplitting has been indulged in by courts and text-writers in discussing this subject (entrapment).”
Though a number of Texas cases may be found which deal with the entrapper as an accomplice witness, in no case involving offense other than offering a bribe to a public official decided since Davis v. State have we found a statement that the defense of entrapment recognized in the Federal courts and in most of the states is not available in Texas.
Nor does the research made by the writer disclose a single instance where the great judges who have graced this court in the past have affirmed a conviction under a record showing that an otherwise innocent person had been convicted of an offense which he did not purpose to commit and would not have committed except for the inducement of an officer whose sole purpose was to secure his conviction.
The attitudes of illustrious former judges of this court toward entrapment are revealed in the following opinions.
Guyer v. State, 37 Tex. Cr. R. 489 , 36 S. W. 450 , Judge Henderson:
“We can conceive of no conduct more reprehensible on the part of officers, whose duty it is to prevent crime, and ‘nip it in the bud,’ instead of so doing, to lend aid and encouragement in carrying it out.---
*634 “Some Courts have gone a great way in giving encouragement to detectives in some very questionable methods adopted by them to discover the guilt of criminals, but they have not yet gone so far, and I trust never will, as to lend aid or encouragement to officers who may, under a mistaken sense of duty, encourage and assist parties to commit crime in order that they may arrest and have them punished for so doing.”
In Smith v. State, 61 Tex. Cr. R. 328 , 135 S. W. 154 , reversed on other grounds, Presiding Judge Davidson had the following to say about entrapment:
“In regard to this phase of the bill, we desire to say the state’s case was made by the hired detective, who worked up cases, and in this case developed the fact that he had induced the appellant to secure the whisky for him with a view and for the purpose of instituting this very prosecution. In every case Jordan had induced the violation of law to which he testified. This manner of instituting prosecutions against the citizenship of the state and inducing them to commit crime is to be deplored. While it is eminently proper that officers should be deligent in ferreting out crime and violations of the law, yet it does not occur to us that the theory of our law is predicated upon the idea that men should be induced to violate the law in order that a prosecution may be brought about. The machinery of the state should be put into operation to detect and punish crime, but not to organize and institute it. The prevention of crime is one of the main purposes of our law, not its encouragement or propagation.”
In Scott v. State, 70 Tex. Cr. R. 57 , 153 S. W. 871 , reversed on other grounds, Presiding Judge Davidson speaking for this Court said:
“The writer has had occasion heretofore to criticize the character and manner of inducing men to commit crime as is evidenced by this record. This witness testifies, and is not in-controverted or contradicted, that the sheriff agreed to give him $10 for each case he would ‘turn in’ and additional money or compensation if a conviction should occur. The officers are not justified in inducing men to commit crime or in employing others to induce them to commit crime in order that prosecutions may be instituted. It is his duty as an officer, where he understands what parties are engaged in crime, to use every effort legitimate and permissible by law to detect and ferret out crimes and bring criminals to trial and justice. But this does *635 not justify him in employing parties to go out and induce the citizens to commit crime that prosecutions may be instituted and carried on. We here call the attention of the Legislature to such matters and would suggest that appropriate legislation be enacted to prevent matters of this sort occurring. This matter was thoroughly gone over by Judge Hurt in Dever v. State, 37 Tex. Cr. R. 396 , 30 S. W. 1071 . See, also, the case of Bush v. State, 151 S. W. 554 , decided at the present term of this court.”
Without regard to whether this court, in deciding Davis v. State, supra, held the view that the defense of entrapment was not available in this state under any set of facts, later opinions of this court where the defense of entrapment was relied upon, viewed in the light of the record showing the issues raised, indicate that had the facts supported the plea or claim, entrapment would have been held to be a defense.
In Cliff v. State, 162 S. W. 2d 712 , the state’s case of procuring was made by the officer claimed to have been guilty of entrapment. His testimony was fully corroborated by the testimony of the prostitute.
The record shows that Cliff requested the following special charge: “Gentlemen of the jury, you are instructed further, that if you believe from the evidence that the idea to have the defendant procure and obtain said female or some other, first originated with said prosecuting officer, R. P. Riley, and he personally suggested and solicited the defendant to obtain the said female alleged herein, or some other female, for unlawful sexual intercourse, or if you have any reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.”
Judge Hawkins disposed of the exception to the refusal of this charge, saying “We think the issue of entrapment was not raised by the evidence.”
The fact that the exception to the failure to give the charge was disposed of on the ground that the issue of entrapment was not raised by the evidence presupposes that had the evidence raised the issue, a charge upon entrapment as a defense would have been proper.
The Cliff case is of special significance because it dealt with the offense of procuring, the distinction between it and the case before us being that here the issue was raised by the evi *636 dence, whereas in the Cliff case the court properly held that it was not.
Peery v. State, 138 Tex. Cr. R. 155 , 134 S. W. 2d 283 , cited in our original opinion, was a case charging the unlawful practice of medicine, the issue of entrapment as a defense was raised in the following manner.
A motion to quash and suppress the evidence was filed, alleging that certain officers did, with criminal intent, entice and entrap the defendant Peery into the commission of an offense that would otherwise not have been consummated.
Peery, in addition to moving for an instructed verdict, requested the following special charge, and reserved an exception to its refusal:
“Gentlemen of the jury, the prevention of crime is one of the main purposes of our laws, not its encouragement or propagation. If you find that the Defendant was induced and lured into the commission of thé offense as charged, if he did, by an officer or officers of the law, or their agents, or that said officer or officers, or their agents, employed parties to go out and induce the Defendant to commit the offense as alleged, if he did, I instruct you that a conviction cannot stand, and the Defendant must be set free. -”
The state’s brief, signed by Judge Davidson of this court, then state’s attorney, contains the statement “under the doctrine of entrapment in this state, the entrappers are accomplices only,” and reasoned that, since appellant made no request for an instruction on accomplice testimony, the question of entrapment was not before the court. It is apparent from his dissenting opinion herein that Judge Davidson adheres to the views expressed in said brief.
Upon original submission of the appeal in Peery v. State it was held that the officers were not shown to be accomplices save one, and that conceding that this one was an accomplice, his testimony was fully corroborated.
Peery then filed a motion for rehearing complaining that he had made no contention that any witness was an accomplice witness; that he did not move for instructed verdict on the ground that all of the testimony in the case was that of accomplice witnesses, and that the question of accomplice witnesses *637 was not before the court. He stated the rule of law he was relying upon as follows: “Where the criminal intent originates in the mind of the entrapping person, and the accused is lured into the commission of the offense charged in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent.” He cited many decisions from other jurisdictions supporting such rule.
Such being the respective contentions of Peery and the state, Judge Graves wrote on rehearing:
“He again complains that the doctrine upon which he requested his peremptory instruction was on account of his contention that the appellant was lured into this violation, and entrapped by the State’s witnesses into treating Mrs. Alonso, and, therefore, because of such fact the law will not permit a conviction under such circumstances to stand. With the application of such a principle to these instant facts we can not agree.---
“In this cause we fail to see any species of entrapment in this agent furnishing the money to Mrs. Alonso, and telling her to go to appellant for treatment, and in her going to appellant and being treated for an ailment from which she was suffering.”
Here again, if the doctrine of entrapment as a defense under no set of facts was considered by the then members of this court to be the law of Texas, as here contended, the court did not see fit to so announce. On the other hand, the court declined to apply the principle to the facts in Peery’s case, failing to see any species of entrapment.
Judge Graves cited with approval the cases of Swallum v. U. S., 39 P. 2d 390 , and U. S. v. Wray, 8 F. 2d 429 . Both of these cases recognize the defense of entrapment which this court properly held was not raised by the evidence in Peery v. State, supra, and the Federal court properly held was not raised by the evidence in Swallum v. U. S., or in U. S. v. Wray, but which is raised by appellant’s testimony in the case before us.
Sometime later, writing on rehearing in Jones v. State, 151 Tex. Cr. Rep. 519, 209 S. W. 2d 613 , wherein the conviction was for offering a bribe to the sheriff of Dallas County, Judge Graves cited with approval the holding in Davis v. State, supra, to the effect that the inducement by the officer would not relieve the act of the accused of its criminality.
*638 Whether or not the defense of entrapment is available in a prosecution for bribery or offering to bribe an officer is not before us.
In view of the foregoing, and of the many decisions from other jurisdictions upholding entrapment as a defense, we remain convinced that a conviction for procuring upon the facts as testified to by appellant, if found by the jury to be true, should not be permitted to stand.
The invocation of the defense of entrapment necessarily •assumes that the act charged was committed. To decline to reverse upon the theory that appellant had admitted his guilt in that he called the Porter Washington and conveyed to him the officer’s wishes, or to hold that his testimony to that effect furnished the required corroboration of the officer’s testimony, would be to deprive him of any relief upon the ground that he was entrapped. Hamilton v. U. S., 221 F. 2d 611 .
The State’s motion for rehearing is overruled.