Petition for Writ of Certiorari — Brooks v. Georgia

~ Reasons for Granting the Writ

7

I. The Decision Below is Inconsistent with

Decisions of this Court and is Therefore

Il. The Decision Below is Inconsistent with

Decisions of the Lower Federal Courts

eB Char Slate Camsts... 2c ccccccccccccccs 9

_ IL The Case is of Major Importance to Se-

Ee cure National Rights and Uniformity of

. PD shcediateetercreiccivueesicvers 11

SE inaienkcycorirssninecenstreoesenets 12

3 p APPEND IX A

, , Georgia Court of Appeals Opinion Affirming

PEE Dida csWesbvecddsstecvoudsedos la-8a

a TABLE OF AUTHORITIES CITED

? United States Supreme Court Cases

F Cox v. Louisiana, 379 U.S. 559 (1965)............ 6

‘ > Elkins v. United States, 364 U.S. 206 (1960). .8, 10, 11

i

Se ee

INDEX (Continued)

Page

| Feldman v. United States, 322 U.S. 487 (1944)....8, 10

Malloy v. United States, 354 U.S. 449 (1957)....... 7

Mapp v. Ohio, 367 U.S. 643 (1961)............. 8, 10

Miranda v. Arizona, 384 U.S. 436 (1966).......... 7

Osborn v. United States, 385 U.S. 323 (1966)...... g

Raley v: Ohio, 360 U.S. 423 (1958)............00. 6

Sherman v. United States, 356 U.S. 396

Sorrells v. United States, 287 U.S. 435 (1932)...6, 7, 11

United States v. Wade, 388 U.S. 218 (1967)...

OTHER CASES

Adams v. United States, 220 F.2d 297 (Sth

Cir. 1955)

Brooks .v. State, 125 Ga. App. 67, —S.E.2d

— (1972) CAR CAGKERUK KU SAN KGh eee babeaen ® p08 ;

Bruno v. United States, 259 F.2d 8 (9th Cir. 1958)..

Grossman v. State, 457 P.2d 226 (Alas.1969)

Henderson v. United States, 261 F.2d 909 (Sth

Ce SO Ess Cab os sh oh neh Sasieseceivceacs 9, 11

Lewis v. United States, 119 U.S.App.D.C.145,

337 F.2d 541 (1964) Cert.Den. 381 U.S. 920

Smith v. State, 396 S.W.2d 876 (Tex.Ct.App.1965).. 9

State v. Jacobson, 15 Ariz.App. 604, 490 P.2d ©

433 (Ariz.1971)

INDEX (Continued)

Page

United States v. Chisum, 312 F.Supp. 1307

been sata aihats Deere re 6

United States v. Prince, 264 F.2d 850 (3rd Cir.

2 EE eri ack a y

United States v. Valdes, 229 F.2d 195 (2nd Cir.

MP Sete Stdeana ce ohaDhsesdindscinccacces, s)

STATUTES

28 U.S.C. §1257 Midd iru dueabdesse. 2

Ga. Code Ann. §26-801........................ 4,5

CONSTITUTIONAL PROVISIONS

Constitution of the United States,

Ninth Amendment.......................... 3,10

Constitution of the United States,

Fourteenth Amendment..................... 3,10

MISCELLANEOUS

Elrlich, “The Defense of Entrapment in the Due

Process Analysis,” 43 U.Colo.L.Rev.127

The Constitutional Status of the Entrapment

Defense,” 74 Yale L.J. 942 a 7

Sherrill, “The Defense of Entrapment: A Plea for

Constitutional Standards,” 20 U.Fla. L.Rev. 63

—Due Process?,” 1971 Utah L.Rev. 266 (Sum-

REN PEPE vases ck chcecessvicter Odes le.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

NO.

TIMOTHY CRAIG BROoks,

Petitioner,

Vv.

STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

Timothy Craig Brooks prays that a writ of certiorari

issue to review the decision of the Court of Appeals of

Georgia sustaining his corviction of selling marijuana,

as to which a Motion for Rehearing was subsequently

denied. Certiorari was denied by the Supreme Court of

Georgia and that Court subsequently denied a Motion

for Rehearing.

OPINION BELOW

The six to three decision of the Court of Appeals of

Georgia, printed in Appendix A, infra., is at 125 Ga. App.

867, ___S.B.2d

2

JURISDICTION

The decision of the Court of Appeals of Georgia was

entered on March 17, 1972. Timely application for re-

hearing, filed on May 27, 1972, was denied on March 31,

1972. Notice of certiorari to the Supreme Court of Geor-

gia was duly given on April 5, 1972, and the petition

for certiorari was duly filed. Certiorari was denied by the

Supreme Court of Georgia on May 12, i972 and a Mo-

tion for Rehearing was duly filed on May 25, 1972, and

denied on June 15, 1972.

The jurisdiction of the Court is invoked under 28

U.S.C. §1257 (3) since rights, privileges and immunities

were set up and claimed under the Constitution of the

United States and are believed to have been improperly

denied by the highest court of the State of Georgia.

QUESTIONS PRESENTED

1

Does due process demand a finding of entrapment

when agents of the state concededly induced a person

to commit a criminal act he would not have committed

otherwise.

2:

Does the right to privacy guaranteed by the Ninth

Amendment to the United States Constitution preclude

the state from convicting a defendant whom officers of

the state induced to engage in criminal acts which the de-

fendant would not have committed except for the conduct

of such officers of the state or their agents.

3.

Does due process require that a defendant have the

right to have the jury charged on the defense of “procur-

3

ing agent” when the evidence, in a prosecution for the

sale of marijuana shows that the defendant was acting

upon the request and on behalf of the police (acting un-

dercover) and that the defendant derived no benefit from

the transaction as he did not sell th< marijuana but only

bought it from another for the police.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Constitution of the United States:

Ninth Amendment

The enumeration in the Constitution of certain rights,

shall not be construed to deny or disparage others retained

by the people.

Fourteenth Amendment

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the States wherein they reside, No

state shall make or enforce a law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or

Property, without due process of law; nor deny any per-

son within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Petitioner moved to dismiss the charge against him (of

selling marijuana) on the ground that the evidence

showed that at most he was an agent of the buyer (T-63).

The motion was denied, as was a motion to dismiss on

the grounds petitioner was entrapped. Petitioner's

proffered charge (No. 2) that he should be acquitted

4

of the charge of selling if the evidence showed him to

be a “procuring agent” of the police was also denied.

Petitioner, a twenty year old, and his wife were tried

for allegedly selling a pound of marijuana to undercover

police officers (violation of the Georgia Drug Abuse Con-

trol Act, Ga. Code Ann. §26-801). His wife was ac

quitted and petitioner received a penitentiary sentence.

The officers utilized several young women who had

previously attempted to help them set up a “buy” of drugs

from another person. That purchase fell through, and the

women contacted petitioner to see if he could help them

get some marijuana for the officers. They first called peti-

tioner on the telephone and he said he “didn’t want to

mess with it.” But then they, accompanied by and on be-

half of the officers, went to petitioner's apartment. The

women were persistent and shuffied in and out of peti-

ing outside in their car, before they were able to get peti-

tioner to help. Petitioner testified that “They just came to

my house and made me feel real bad that I didn’t help

some freaks [hippies] out . . . and they pushed me into

it.” One of the officers conceded in his testimony that

petitioner did not want to participate and that he was

“reluctant to get involved in this matter.”

Petitioner then called another person, one Charles

Wofford, to see if he had or knew where to get some

marijuana. A probable price of $175 a pound was men-

tioned. Thereafter petitioner went with one of the officers

and others to Wofford’s apartment to attempt to make the

purchase. Petitioner went by himself into Wofford's

apartment. As petitioner left the officer to go into Wof-

ford’s apartment, the officer gave him $175, telling him

to haggle to “see if we could get the price down some.”

5

This officer conceded in his testimony that petitioner was

acting “more or less as [his] agent to try to haggle the

price down.”

Wofford then came down to the car and went with the

group to another location where, after an initial failure

L THE DECISION BELOW IS INCONSISTENT

WITH DECISIONS OF

to commit crimes in the face of the citizen's obvious re-

huctance and then to prosecute them for those crimes.

There is a great need for this Court to apply due pro-

cess standards to the defense of entrapment in drug cases.

Our nation’s youth are quite familiar with the use of drugs

and where mind altering substances can be obtained.

Marijeane and othe: prohibited substances are commonly

used in our high schoois and colleges. This common avail-

'. See

obtenined make our young people tasy prey for the

beguiling undercover agent who is seeking to fill his quota

of drug comvictions. (All the young women im this case

and Wofford were indicted—the actual seller got away! )

Séme lower federal courts and state courts have held

that entraptiient is violative of the commonly accepted

standards of fundamental fairness enunciated by the due

process claus and the cates interpreting it. See ez,

United States v. Chinitm, 312 F Sapp.1307, 1312 (CD.

Calif. 1970); Grosiman ¥. State, 457 P.2d 226 (Alas.

1969). This Court has held that in convicting a citizen

for exercising a privilege which the State had clearly told

him was availabie to him violated the Due Process Clause

of the Fourteenth Amendment as it is “. . . an indefensible

sort of entrapsient .. .” Raley v. Ohio, 360 U.S. 423, 425-

426 (1958); Cox v. Louisiana, 379 U.S. 559, 571

(1965). The separate opinions in Sherman v. United

States, 356 U.S. 369 (1958) (Frankfurter, J.,) and Sor-

rells v. United States, 287 US. 435 (Roberts, J.) state

that the foundation of the entrapment defense should be

due process rather than policy consideration or statutory

interpretation.

The motion that entrapment-like conduct is not con-

ducive to fair enforcement of crimimal law is closely

7

analagous to the other extensions of substantive due pro-

cess by this Court. E.g., United States v. Wade, 388 US.

“The Defense of Entrapment: Next Move—Due Pro-

cess?,” 1971 Utah L. Rev. 271-274 (Summer 1971);

Elrlich, “The Defense of Entrapment and the Due Process

Analysis,” 43 U.Colo.L.Rev. 127 (May 1971); Sherrill,

United States, 287 U.S. 435, 442.

Permitting such activity by officers of the state should

not be condoned by the Courts. The method employed

on behalf of the State to bring about petitioner's convic-

tion cannot be countenanced. Mr. Justice Frankfurter

Mated that such “police conduct is not to be tolerated by

a . *

an advanced society.” Sherman v. United States, 356 US.

369, 383. He went on to say that, “The power of govern-

ment is abused and directed to an end for which it was not

constituted when employed to promote rather than detect

crime. . .. Human nature is weak enough and sufficiently

beset by temptations without government adding to them

and generating crime.” Jd. at 384.

The activity of the undercover officers in the case at

bar violated petitioner’s right to due process of law as

guaranteed by the Fourteenth Amendment to the United

States Constitution. It also violated petitioner’s right to

privacy and his right to be free from unlawful interference

from the State as guaranteed by the Ninth Amendment to

the United States Constitution. Cf. Mapp v. Ohio, 367

U.S. 643; Elkins v. United States, 364 U.S. 206; Feldman

v. United States, 322 U.S. 487. Mr. Justice Douglass

stated in Osborn v. United States, 385 U.S. 323, 343-344

(separate opinion) that, entrapment is merely a facet of

a much broader problem. Together with illegal searches

ging, it represents lawless invasion of privacy. It is in-

dicative of a philosophy that the “ends justify the means.”

In Mapp v. Ohio, 367 U.S. 643, this Court extended

the exclusionary rule prohibiting “unreasonable search

and seizures” to state criminal trials on the underlying

conviction that the Court can identify enforcement pro-

cedures that abuse fundamental rights and guarantee those

rights by establishing minimum standards of police be-

havior on those enforcement procedures. Taylor, “The

Defense of Entrapment: Next Move—Due Process?”

1971 Utah L.Rev. 266, 273 (Summer 1971). Similar

judicial protection should be taken to ensure that police

9

enforcement procedures are not over stepped in the area

of entrapment.

Il. THE DECISION BELOW IS INCONSISTENT

WITH DECISIONS OF THE LOWER FEDER-

AL COURTS AND MOST OTHER STATE

COURTS.

The State courts are split on whether merely acting as

a “procuring agent” is a defense to the charge of selling

unlawful drugs. E.g., Smith v. State, 396 S.W.2d 876, 878-

879 (Tex. Ct.App. 1965) (and cases cited therein) ; State

v. Jacobson, 15 Ariz. App. 604, 490 P.2d 433, 435 (Ariz.

1971) (and cases cited therein.) Brooks v. State, 125

Ga.App. 867, ___SE 2d___(1972). But the lower fed-

eral courts recognize the defense. E.g., Lewis v. United

States, 119 U.S.App. D.C. 145, 337 F.2d 541 (1964)

certiorari denied 381 U.S. 920 (1965); United States v.

Prince, 264 F.2d 850-(3d Cir. 1959); Henderson v.

United States, 261 F.2d 909, 912 (Sth Cir. 1958); United

States v. Valdes, 229 F.2d 195 (2nd Cir. 1956); Bruno

v. United States, 259 F.2d 8 (9th Cir. 1958).

The facts in the record and set forth above demand a

different result from that rendered by the courts below.

The undisputed evidence shows that petitioner was not a

seller but rather that he was an agent of the undercover

police buyer in making the marijuana purchase and agree-

ing on the price in the case at bar. The money was fur-

nished by the state witnesses; petitioner made no profit

therefrom and the entire transaction was at the suggestion

and instigation of the state’s witnesses who were disguised

supplier at the time he was approached. The police officer

conceded, under oath, that petitioner was the officer’s

10

agent. No witness for the State suggested that petitioner

received any of the marijuana or any of the profit, or any

of the money for his participation in the transaction.

The Fourteenth Amendment to the United States Con-

stitution states that no person shall be deprived of life,

liberty or property without due process of law. State ac-

- tion which is “fundamentally unfair” constitutes a viola-

tion of due process. It is fundamentally unfair to permit

officers of the State to persistently solicit citizens to com-

mit crimes in the face of the citizens’ obvious reluctance

The Ninth Amendment to the United States Constitu-

tion guarantees that the people retain the right to be free

from invasions of their personal privacy. This Court has

held that evidence which has been seized unlawfully must

be Mapp v. Ohio, 367 U.S. 643. Although

the decision rested on the Fourth Amendment,

crcths Sksuietis al ends Aushechooat and of cnc toon

dom is complimentary to, although not dependent upon

that of the other .. .” Id. at 657. The Amendments enacted

in the Bill of Rights “express ‘suppiementing phases of

the same constitutional purpose—to maintain inviolative

large areas of personal privacy.’ Feldman v. United States,

322 U.S. 487, 489-490 (1944).” Mapp v. Ohio, 367 US.

643, 657. This Court has also stated that, “The security of

one’s privacy against arbitrary intrusion by the police . . .

is . . . implicit in the concept of ordered liberty and as

such enforceable against the states through the Due Pro-

cess Clause.” Etkins v. United States, 364 U.S. 206, 213

(1960). Citizens must be protected against the invasion

of their privacy by overzealous police officers who con-

vince them to commit crimes they would not otherwise

commit.

il

The federal courts have held that the defense of “pro-

curing agent” is a valid defense to the charge of illegal

sale of drugs, indicating that it is fundamentally unfair to

convict someone of selling an illegal substance who is act-

ing at the instance of the buyer, a disguised officer. Hen-

derson v. United States, 261 F.2d 909, 912 (Sth Cir.

1958); Adams v. United States, 220 F.2d 297 (5th Cir.

1955). “The very essence of a healthy federalism depends

upon the avoidance of needless conflict between state and

federal courts.” Elkins v. United States, 364 U.S. at 221.

The evidence demanded a verdict for petitioner on the

ground that he was entrapped into participating in the

alleged “crime” of which he was convicted. If ever there

was an instance when one would not have committed a

“crime” except for police urging, the present case is such.

IL THE CASE IS OF MAJOR IMPORTANCE

TO SECURE NATIONAL RIGHTS AND UNI

FORMITY OF JUDGMENT.

Despite this Court’s decisions in the entrapment area,

some state courts still give spotty regard to the Court's

pronouncements. If the Sherman and Sorrells cases are to

have continuing validity. , it is urgent that the Court apply

them to the circumstances of this case.

The decisions of the lower federal courts should be ap-

plied to the states so as to provide uniformity of law and

due process in the defense of state drug cases.

12

CONCLUSION

The petition for a Writ of Certiorari should be granted

and the judgment below reversed for the above stated

reasons.

Respectfully submitted,

ALBERT M. HORN

Suite 822

15 Peachtree St., N.E.

Atlanta, Georgia 30303

524-6878 (404)

CERTIFICATE OF SERVICE

I certify that I duly mailed copies of the foregoing pe-

tition for a Writ of Certiorari to Hon. Arthur Bolton, At-

torney General of Georgia, State Judicial Building, At-

lanta, Georgia, and Hon. Lewis Slaton, District Attorney,

Fulton Superior Court, Fulton County Courthouse, At-

lanta, Georgia on September___., 1972.

ALBERT M. HORN

APPENDIX A

46834. BROOKS v. THE STATE

EBERHARDT, Judge. Two members of the narcotics squad

of the Atlanta metro police force made acquaintance

with some girls who were used as entrees for making

contacts with sellers of drugs. The officers expressed a

desire to buy a pound of marijuana, and the girls took

them to the apartment of defendant and his wife. He

had none, but at the urging of the girls called several

people in an attempt to locate marijuana for them. De-

fendant demurred somewhat, but finally he and his wife

went with the girls and the officers to a location where

defendant made a contact which produced substantially

a pound of marijuana wrapped in a newspaper. It was

to be obtained for $165, and $10 of the $175 supplied

by the officers was returned. When the marijuana was

produced the price was again reduced $10 because it

was “trashy” and another $10 was refunded to the

officers. Defendant and his wife kept none of the money

but were prosecuted under Code Ann. §26-801 for sell-

ing the marijuana and on trial of the case she was ac-

quitted while he was convicted and sentenced to serve

six months. He now appeals. Held:

. The contention that defendant was entitled to an ac-

quittal because he had acted as an agent of the pur-

chasers in acquiring the marijuana is without merit.

The same contention was made in Green v. State, 124

Ga. App. 469 (184 SE2d 194) under similar circum-

stances.

2. There was no entrapment. Allen v. State, 120 Ga. App.

533, 535 (171 SE2d 380).

3. In the charge to the jury the court informed the jury

la

2a

that the offense charged in the indictment was that of a

“the court charges you the law provides that it shall be

unlawful for any person to possess or have under his

control any narcotic drugs except as authorized” by the

Act. There was no instruction as to a conviction or ac-

ee ee ee ren ae Bs fe

dictment charged the defendant with the offense of

selling one pound of marijuana to L. O. Webb; it did

not charge unlawful possession.

There was explicit charge on the matter of selling: “The

court charges you if you believe beyond a reasonable

doubt . . . that the defendants did on the 3rd day of

March, 1971, not being authorized under any provision

of the Georgia Drug Abuse Control Act to do so, did

unlawfully sell one pound of marijuana to L. O. Webb,

then and in that event, you would be authorized to con-

vict the defendants of the offense charged in this bill of

indictment,” and that if they should have a reasonable

doubt as to their guilt “of the offense charged in this bill

of indictment, it would be your duty to give them the

benefit of that doubt and to acquit them.” Throughout

the charge there were references to the “offense as

charged in this indictment.”

It is urged that the reference to possession in the charge

was calculated to confuse the jury, but we do not agree.

It would have been better to have omitted the reference,

but upon a reading of the whole charge we can see no

harm in it. There was never an indication or instruction

that the jury might convict for unlawful possession, and

the tenor of the whole charge was that they were being

tried for selling marijuana in a specific quantity on a

specific date to a specific party. The jury made no effort

3a

to deal with any other offense than that charged in the

indictment.

“The intent and the reasonable construction of the charge

was to inform them that the indictment charged selling

and not possessing, and that their verdict must deter-

mine the defendant's guilt or innocence of the charge of

selling as alleged in the indictment, and not of the

charge of possessing. The fact that the indictment

charged selling only takes the case out of the rulings

cited by the plaintiff in error. The defendant was not

injured by the charge, and ‘injury as well as error must

be shown before a new trial will be granted.’ ” Christian

v. State, 41 Ga. App. 565, 566 (153 SE 780).

4. For the reasons stated in Headnote 1 there was no error

in denying a request to charge on a defense that the de-

fendant had been a “procuring agent” for the officer.

5. There was no error in the charge on conspiracy. There

was a definition of conspiracy and an instruction that it

was for the jury to determine from all of the facts and

circumstances, as shown by the evidence, whether one

existed for the commission of the offense charged in the

bill of indictment, and, if so, whether the defendants

were parties thereto, arid that if the jury should find no

conspiracy, or, that one existed but that defendants

were not parties thereto, they should disregard the

charge on that subject. We think the evidence raised a

factual issue as to whether there was a conspiracy, and

of course if the jury should find it to have existed and

that the defendant was a party to it, as they may very

well have done, the law makes the acts of all parties

the acts of each.

6. The general grounds of the motion for new trial are

without merit. We have dealt with the special grounds.

4a

Judgment affirmed. Bell, C. J., Jordan, P. J., Hall, P. J.,

Quillian and Clark, JJ., concur. Pannell, Deen and

Evans, JJ., dissent.

ARGUED JANUARY 4, 1972-—DECIDED Marcu 17,

1972—

REHEARING DENIED MaRCH 31, 1972—CERT. APPLIED

FOR.

Drug violation. Fulton Superior Court. Before Judge

Wofford.

Albert M. Horn, for appellant.

Lewis R. Slaton, District Attorney, Carter Goode, Rob-

ert L. Ridley, Joel M. Feldman, for appellee.

Evans, Judge, dissenting. One of the principal defenses

offered by defendant was that he had no interest whatever

in the transaction surrounding the purchase of marijuana,

and that certain persons (later identified as policemen).

came to him and induced him to buy marijuana for some-

one who badly needed some. He contended that he was

not “concerned” in the sale and was not the agent of the

seller, but that he was the agent of the purchaser.

The defendant contended that he did not make any

profit from the transaction; that the money used to pur-

chase the drugs was furnished by the policemen; and that

his sole purpose in participating in the transaction was:

“They just came to my house and made me feel real bad

that I didn’t help some freaks out . . . and they pushed me

into it.” No witness for the State suggested that defendant

received any of the marijuana or any of the money, or any

profit, for his participation in the transaction.

In support of defendant’s contention that he was agent

for the purchaser (the policemen) it is highly significant

Sa

that the record in this case shows that when officer L. O.

Webb (a witness for the prosecution) was testifying, the

following question and answer were given: “Q. In other

words, you were asking him (defendant) more or less as

your agent, to try to haggle the price down for you, is

that right? A. That's correct. $175 was a little bit high to

what we had been paying for it.” (Tr. 22, 23) (Emphasis

supplied ).

Counsel for defendant, timely submitted a request in

writing for the court to charge the jury as follows, to wit:

“, .. the defense of ‘procuring agent’ exists where the pur-

chase of drugs was made at the direction of an agent of the

State who paid for the drugs and where the defendant

made no profit from the sale in question. Thus, if you be-

lieve under all the facts and circumstances of this case that

the defendant purchased drugs because of the direction of

an agent of the State who paid for the drugs and that the

defendant made no profit either in money or in kind from

the transaction complained of, it would be your duty to

acquit the defendant of the crime with which he is

charged.”

It was error for the court to fail to give this charge, in

substance, whether written request was filed or not, be-

cause this was a defense relied on by defendant, and there

was ample evidence to support the theory of agency for

the State.

In United States v. Sawyer, 210 F2d 169 (a Federal

case quite similar to the facts in this case), the United

States Court of Appeals, Third Circuit, reversed the lower

court for failing to charge on the question of agency,

which was shown by the facts there just as it was shown in

this case. That court ruled that in a prosecution for unlaw-

ful sale of narcotics, the jury should have been instructed

6a

that, if they believed that the Federal agent had asked de-

fendant to get some heroin for the agent, and thereupon

the defendant undertook to act in behalf of the Federal

agent, as prospective purchaser, rather than on his own

behalf, and, in doing so, purchased the drug from a third

person with whom defendant was not associated in selling,

defendant would not be a seller of such drugs which he

delivered to the agent and could not be convicted. The

case sub judice is even stronger in that the evidence shows

that defendant acted as agent for the State in making the

purchase and agreeing on the price (admitted by State's

witness ) ; that the money was furnished by the State's wit-

nesses; that defendant did not make any profit therefrom;

and that the entire transaction was at the suggestion and

instigation of State's witnesses, who were policemen in

disguise; that defendant did not himself sell the drugs but

found someone else who did sell them.

In the opinion of Judge Hasty, in the Sawyer case,

supra, at page 170 we find the following: “In these cir-

cumstances, we think the court should at least have

pointed out to the jury that if they believed that the federal

agent asked the defendant to get some heroin for him and

thereupon the defendant undertook to act in the prospec-

tive purchaser's behalf rather than his own, and in so do

ing purchased the drug from a third person with whom he

was not associated in selling, and thereafter delivered it to

the buyer, the defendant would not be a seller and could

not be convicted under this indictment. This may be ob-

vious to a lawyer, but we are not sure that in the circum-

stances of this case the distinction between a seller and a

procuring agent was equally clear to laymen. The govern-

ment having elected to charge the defendant with the

crime of sale rather than illegal possession, the jury should

——=_

7a

have been alerted to the legal limitations of the sale con-

cept in relation to the circumstances of this case.”

It is noted that in the later cases of Adams v. United

States, 220 F2d 297, and Henderson v. United States, 261

F2d 909, the Sawyer case was cited and followed by the

Fifth Circuit to the point of reversing, and in Sawyer with

direction to enter a verdict of acquittal. I do not feel that

this court should go so far and remove the question from

the jury. The law of this State is somewhat different from

that of the Federal government; and the issue created by

the evidence as to whether the accused is the agent of the

buyer or the agent of the seller, or is otherwise “con-

cerned” by intentionally aiding or abetting the commission

of a crime remains. See Code Ann. (New Criminal) § 26-

801 (Ga. L. 1968, pp. 1249, 1271). The appellate courts

of this State have uniformly held that the charge of the

judge to the jury must give the law of the case to the extent

of covering the substantial issues made by the evidence,

whether such instructions are requested or not. See Cen-

tral R. v. Harris, 76 Ga. 501, 511; Southern Cotton Oil

Co. v. Brownlee, 26 Ga. App. 782 (2) (107 SE 355);

Van Valkenburg v. Wood, 41 Ga. App. 564 (1) (153 SE

924); Anderson v. Barron, 208 Ga. 785 (4) (69 SE2d

874); Kresge Co. v. Carty, 120 Ga. App. 170 (2) (169

SE2d 735); Davis v. Hammock, 123 Ga. App. 33, 36

(179 SE2d 283). The instruction requested was clearly

apt and should have been charged.

In view of the foregoing, I dissent from Headnote 4 of

the opinion of the majority and from the judgment of

affirmance. While it is an extremely close question as to

whether the evidence was sufficient to convict, I prefer to

premise my dissent on the failure to give a proper charge

on one of defendant's principal defenses.

8a

The accused was entitled to “the procuring agent de-

fense” and, at the very least, he was entitled to a correct

charge on that principle, whether requested in writing or

not. The lower court clearly erred in refusing to give such

charge, after it was requested in writing, and in my opin-

ion the judgment of conviction should be reversed and a

new trial ordered.

I am authorized to state that Judges Pannell and Deen

concur in this dissent.

INDEX

3 Georgia Supreme Court Notice

= Denying Certiorari...........................

PP POCO SO Seeeeeeosoeneeeecs

ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

NO. 72-410

TIMOTHY CRAIG BROOKS,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

SUPPLEMENTAL APPENDIX

GEORGIA SUPREME COURT

NOTICE DENYING CERTIORARI

Clerk’s Office, Supreme Court of Georgia

Atlanta 30334, May 18, 1972

Dear Sir:

Case No. 27281, Brooks v. State

The Supreme Court today denied the writ of

certiorari in this case.

Jordan, J. disqualified.

Very truly yours,

Mrs. JOLINE B. WILLIAMS,

Clerk

Ib

2b

GEORGIA SUPREME COURT

NOTICE DENYING REHEARING

Clerk’s Office, Supreme Court of Georgia

Atlanta 30334, June 15, 1972

Dear Sir:

Case No. 27281, Timothy Craig Brooks v. The State

The motion for reconsideration was denied today.

Jordan, J. Disqualified. —

Very truly yours,

Mrs. JOLINE B. WILLIAMS,

Clerk

CERTIFICATE OF SERVICE

I certify that I duly mailed copies of the foregoing

Supplemental Appendix to Hon. Arthur Bolton, At-

torney General of Georgia, State Judicial Building,

Atlanta, Georgia, and Hon. Lewis Slaton, District

Attorney, Fulton Superior Court, Fulton County

Courthouse, Atlanta, Georgia on September —_,

1972.

ALBERT M. Horn