Opinion — Sorrells v. United States

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SUPREME COURT OF THE UNITED STATES.

No. 177.—Octosrr Term, 1932.

—

On Writ of Certiorari to

the United States Cir-

cuit Court of Appeals

for the Fourth Circuit.

C. V. Sorrells, Petitioner,

vs.

The United States of America.

[December 19, 1932.]

Mr. Chief Justice Huanes delivered the opinion of the Court.

Defendant was indicted on two counts (1) for possessing and

(2) for selling, on July 13, 1930, one-half gallon of whiskey in

violation of the National Prohibition Act. He pleaded not guilty.

Upon the trial he relied upon the defense of entrapment.

The court refused to sustain the defense, denying a motion to

direct a verdict in favor of defendant and also refusing to submit

the issue of entrapment to the jury. The court ruled that ‘‘as a

matter of law’’ there was no entrapment. Verdict of guilty fol-

lowed, motions in arrest, and to set aside the verdict as contrary

to the law and the evidence, were denied, and defendant was

sentenced to imprisonment for eighteen months. The Circuit

Court of Appeals affirmed the judgment (57 F. (2d) 973) and this

Court granted a writ of certiorari limited to the question whether

the evidence was sufficient to go to the jury upon the issue of

entrapment.

The Government, while supporting the conclusion of the court

below, also urges that the defense, if available, should have been

pleaded in bar to further proceedings under the indictment and

could not be raised under the plea of not guilty. This question

of pleading appropriately awaits the consideration of the nature

and grounds of the defense.

The substance of the testimony at the trial as to entrapment

was as follows: For the Government, one Martin, a prohibition

agent, testified that having resided for a time in Haywood County,

North Carolina, where he posed as a tourist, he visited defendant’s

home near Canton, on Sunday, J uly 13, 1930, accompanied by

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2 Sorrells vs. United States.

three residents of the county who knew the defendant well. He

was introduced as a resident of Charlotte who was stopping for

a time at Clyde. The witness ascertained that defendant was a

veteran of the World War and a former member of the 30th Divi-

sion A. E. F. Witness informed defendant that he was also an

ex-service man and a former member of the same Division, which

was true. Witness asked defendant if he could get the witness

some liquor and defendant stated that he did not have any. Later,

there was a second request without result. One of those present,

one Jones, was also an ex-service man and a former member of

the 30th Division, and the conversation turned to the war experi-

ences of the three. After this, witness asked defendant for a

third time to get him some liquor, whereupon defendant left his

home and after a few minutes came back with a half gallon of

liquor for which the witness paid defendant five dollars. Martin

also testified that he was ‘‘the first and only person among those

present at the time who said anything about securing some liquor“,

and that his purpose was to prosecute the defendant for procuring

and selling it. The Government rested its case on Martin’s testi-

mony. .

Defendant called as witnesses the three persons who had ac-

companied the prohibition agent. In substance, they corroborated

the latter’s story but with some additions. Jones, a railroad em-

ployee, testified that he had introduced the agent to the defendant

‘fas a furniture dealer of Charlotte, because the agent had so

represented himself; that witness told defendant that the agent was

an old 30th Division man’’ and the agent thereupon said to de-

fendant that he would like to get a half gallon of whiskey to take

back to Charlotte to a friend of his that was in the furniture busi-

ness with him, and that defendant replied that he ‘‘did not fool

with whiskey’’; that the agent and his companions were at de-

fendant’s home ‘‘for probably an hour or an hour and a half and

that during such time the agent asked the defendant three or four

or probably five times to get him, the agent, some liquor’’. De-

fendant said he would go and see if he could get a half gallon of

liquor’’ and he returned with it after an absence of ‘‘between

twenty and thirty minutes“. Jones added that at that time he

had never heard of defendant being in the liquor business, that

he and the defendant were ‘‘two old buddies’’, and that he be-

lieved one former war buddy would get liquor for another“

Sorrells vs. United States. 3

Another witness, the timekeeper and assistant paymaster of the

Champion Fibre Company at Canton testified that defendant was

an employee of that company and had been on his job continu-

ously without missing a pay day since March, 1924’’. Witness

identified the time sheet showing this employment. This witness

and three others who were neighbors of the defendant and had

known him for many years testified to his good character.

To rebut this testimony, the Government called three witnesses

who testified that the defendant had the general reputation of a

rum runner. There was no evidence that the defendant had ever

possessed or sold any intoxicating liquor prior to the transaction

in question.

It is clear that the evidence was sufficient to warrant a finding

that the act for which defendant was prosecuted was instigated

by the prohibition agent, that it was the creature of his purpose,

that defendant had no previous disposition to commit it but was

an industrious, law-abiding citizen, and that the agent lured de-

fendant, otherwise innocent, to its commission by repeated and

persistent solicitation in which he succeeded by taking advantage

of the sentiment aroused by reminiscences of their experiences as

companions in arms in the World War. Such a gross abuse of

authority given for the purpose of detecting and punishing crime,

and not for the making of criminals, deserves the severest con-

demnation, but the question whether it precludes prosecution or

affords a ground of defense, and, if so, upon what theory, has

given rise to conflicting opinions.

It is well settled that the fact that officers or employees of the

Government merely afford opportunities or facilities for the com-

mission of the offense does not defeat the prosecution. Artifice

and stratagem may be employed to catch those engaged in crimi-

nal enterprises. Grimm v. United States, 156 U. S. 604, 610;

Goode v. United States, 159 U. 8. 663, 669 ; Rosen v. United States,

161 U. S. 29, 42; Andrews v. United States, 162 U. S. 420, 423;

Price v. United States, 165 U. 8. 311, 315; Bates v. United States,

10 Fed. 92, 94; Note. p. 97. United States v. Reisenweber, 288

Fed. 520, 526; Aultman v. United States, 289 Fed. 251. The ap-

See, also, Regina v. Williams, 1 Car. & K. 195; People v. Mills, 178 N. X.

274; People v. Ficke, 343 III. 367.

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4 Sorrells vs. United States.

propriate object of this permitted activity, frequently essential to

the enforcement of the law, is to reveal the criminal design ; to ex-

pose the illicit traffic, the prohibited publication, the fraudulent

use of the mails, the illegal conspiracy, or other offenses, and thus

to disclose the would-be violators of the law. A different question

is presented when the criminal design originates with the officials

of the Government, and they implart in the mind of an innocent

person the disposition to commit the alleged offense and induce

its commission in order that they may prosecute.

The Cireuit Court of Appeals reached the conclusion that the

defense of entrapment can be maintained only where, as a result

of inducement, the accused is placed in the attitude of having com-

mitted a crime which he did not intend to commit, or where, by

reason of the consent implied in the inducement, no crime has in

fact been committed. 57 F. (2d) p. 974. As illustrating the first

class, reference is made to the case of a sale of liquor to an Indian

who was disguised so as to mislead the accused as to his identity.

United States v. Healy, 02 Fed. 349; Voves v. United States, 249

Fed. 191. In the second class are found cases such as those of

larceny or rape where want of consent is an element of the crime.

Regina v. Fletcher, 8 Cox. C. C. 131; Rex v. McDaniel, Fost. 121,

127, 128; Connor v. People, 18 Colo. 373; Williams v. Georgia, 55

Ga. 391; United States v. Whittier, 5 Dill. 35; State v. Adams, 115

N. C. 775. There may also be physical conditions which are essential

to the offense and which do not exist in the case of a trap, as, for ex-

ample, in the case of a prosecution for burglary where it appears

that by reason of the trap there is no breaking. Rex v. Egginton,

2 Leach, C. C. 913; Regina v. Johnson, Car. & Mar. 218; Saunders

v. People, 38 Mich. 218; People v. McCord, 76 Mich. 200; Allen v.

State, 40 Ala. 334; Love v. People, 160 Ill. 501. But these deci-

sions applying accepted principles to particular offenses, do not

reach, much less determine, the present question. Neither in

reasoning nor in effect do they prescribe limits for the doctrine

of entrapment.

While this Court has not spoken on the precise question (see

Casey v. United States, 276 U. S. 413, 419, 423), the weight of

authority in the lower federal courts is decidedly in favor of the

2See note of Francis Wharton to Bates v. United States, 10 Fed. 97-99.

Compare Olmstead v. United States, 277 U. S. 438.

Sorrells vs. United States. 5

view that in such case as the one before us the defense of entrap-

ment is available. The Government concedes that its contention,

in supporting the ruling of the Cireuit Court of Appeals, is op-

posed by decisions in all the other Cireuits except the Tenth Cir-

euit, and no decision in that Circuit suggesting a different view has

been brought to our attention. See Capuano v. United States (C.

C. A. Ist), 9 F. (2d) 41, 42; United States v. Lynch (S. D. N. V.,

Hough, J.), 256 Fed. 983, 984; Lucadamo v. United States (C. C. A.

2d), 280 Fed. 653, 657. 658; Zucker v. United States (C. C. A. 3d),

288 Fed. 12, 15; Gargano v. United States (C. C. A. 5th), 24 F.

(2d) 625, 626; Cermak v. United States (C. C. A. 6th), 4 F. (2d)

99; O’Brien v. United States (C. C. A. 7th), 51 Fed. 674, 679, 680;

Butts v. United States (C. C. A. 8th), 273 Fed. 35, 38; Woo Wai v.

United States (C. C. A. 9th), 223 Fed. 412. And the Cireuit

Court of Appeals of the Fourth Circuit, in the instant case, was

able to reach its conclusion only by declining to follow the rule

which it had laid down in its earlier decision in Newman v. United

States, 299 Fed. 128, 131.“ It should be added that in many cases

in which the evidence has been found insufficient to support the

defense of entrapment the availability of that defense, on a show-

ing of such facts as are present here, has been recognized.“ The

Federal courts have generally approved the statement of Circuit

See, also, United States v. Adams, 59 Fed. 674; Sam Lick v. United States,

240 Fed. 60, 65; United States v. Echols, 253 Fed. 862; Peterson v. United

States, 255 Fed. 433; Billingsley v. United States, 274 Fed. 86, 89; Luterman

v. United States, 281 Fed. 374, 377; United States v. Pappagoda, 288 Fed.

214; Ritter v. United States, 293 Fed. 187; Di Salvo v. United States, 2

F. (2d) 222; Silk v. United States, 16 F. (24) 568; Jarl v. United States,

19 F. (2d) 891; Coreoran v. United States, 19 F. (2d) 901; United States v.

Washington, 20 F. (2d) 160; Cline v. United States, 20 F. (2d) 494; United

States v. Mathues, 22 F. (2d) 979; Driskill v. United States, 24 F. (2d)

525; Ybor v. United States, 31 F. (2d) 42; Robinson v. United States, 32

F. (2d) 505; Vacearo v. Collier, 38 F. (2d) 862; Patton v. United States,

42 F. (2d) 68; and cases collected in note in O’Brien v. United States, 51

F. (2d) 674, 678, including decisions of state courts. Compare Rex v. Titley,

14 Cox, C. C. 502; Blaikie v. Linton, 18 Scottish Law Rep. 583; London Law

Times, July 30, 1881, p. 223; People v. Mills, 178 N. v. 274 State v. Smith,

152 N. C. 798; Bauer v. Commonwealth, 135 Va. 463; State v. Gibbs, 109

Minn. 247; State v. Rippey, 127 S. C. 550. See, also, 18 A. L. R. Ann. 146;

28 Columbia Law Rev. 1067; 44 Harv. Law Rev. 109; 2 So. Cal. Law Rev.

283; 41 Yale Law J. 1249; 10 Va. Law Rev. 316; 9 Tex. Law Rev. 276.

See cases cited in note 4.

6 Sorrells vs. United States.

Judge Sanborn in the leading case of Butts v. United States,

supra, as follows: ‘‘The first duties of the officers of the law are

to prevent, not to punish crime. It is not their duty to incite to

and create crime for the sole purpose of prosecuting and punish-

ing it. Here the evidence strongly tends to prove, if it does not

conclusively do so, that their first and chief endeavor was to cause,

to create, crime in order to punish it, and it is unconscionable, con-

trary to public policy, and to the established law of the land to

punish a man for the commission of an offense of the like of which

he had never been guilty, either in thought or in deed, and evidently

never would have been guilty of if the officers of the law had not

inspired, incited, persuaded, and lured him to attempt to commit

it’’. The judgment in that case was reversed because of the

‘fatal error’ of the trial court in refusing to instruct the jury to

that effect. In Newman v. United States, supra, the applicable

principle was thus stated by Cireuit Judge Woods: It is well

settled that decoys may be used to entrap criminals, and to pre-

sent opportunity to one intending or willing to commit crime. But

decoys are not permissible to ensnare the innocent and law-abiding

into the commission of crime. When the criminal design origi-

nates, not with the accused, but is conceived in the mind of the

government officers, and the accused is by persuasion, deceitful

representation, or inducement lured into the commission of a crimi-

nal act, the government is estopped by sound publie policy from

proseeution therefor’’. These quotations sufficiently indicate the

grounds of the decisions above cited.

The validity of the principle as thus stated and applied is chal-

lenged both upon theoretical and practical grounds. The argu-

ment, from the standpoint of principle, is that the court is called

upon to try the accused for a particular offense which is defined

by statute and that, if the evidence shows that this offense has

knowingly been committed, it matters not that its commission was

induced by officers of the Government in the manner and circum-

stances assumed. It is said that where one intentionally does an

act in circumstances known to him, and the particular conduct is

forbidden by the law in those circumstances, he intentionally

breaks the law in the only sense in which the law considers intent.

Ellis v. United States, 206 U. S. 246, 257. Moreover, that as the

statute is designed to redress a publie wrong, and not a private

Sorrells vs. United States. 7

injury, there is no ground for holding the Government estopped

by the conduct of its officers from prosecuting the offender. To

the suggestion of public policy the objectors answer that the legis-

lature, acting within its constitutional authority, is the arbiter of

publie poliey“ and that, where conduct is expressly forbidden and

penalized by a valid statute, the courts are not at liberty to dis-

regard the law and to bar a prosecution for its violation because

they are of the opinion that the crime has been instigated by gov-

ernment officials.

It is manifest that these arguments rest entirely upon the letter

of the statute. They take no account of the fact that its applica-

tion in the circumstances under consideration is foreign to its pur-

pose; that such an application is so shocking to the sense of justice

that it has been urged that it is the duty of the court to stop the

prosecution in the interest of the Government itself, to protect it

from the illegal conduct of its officers and to preserve the purity

of its courts. Casey v. United States, supra. But can an applica-

tion of the statute having such an effect—creating a situation so

contrary to the purpose of the law and so inconsistent with its

proper enforcement as to invoke such a challenge—fairly be deemed

to be within its intendment?

Literal interpretation of statutes at the expense of the reason

of the law and producing absurd consequences or flagrant injustice

has frequently been condemned. In United States v. Palmer, 3

Wheat. 610, 631, Chief Justice Marshall, in construing the Act of

Congress of April 30, 1790, section 8 (1 Stat. 113) relating to rob-

bery on the high seas, found that the words ‘‘any person or per-

sons were broad enough to comprehend every human being“,

but he concluded that general words must not only be limited

to cases within the jurisdiction of the state, but also to those objects

to which the legislature intended to apply them’’. In United States

v. Kirby, 7 Wall. 482, the case arose under the Act of Congress

of March 3, 1825 (4 Stat. 104) providing for the conviction of any

person who ‘‘shall knowingly and willfully obstruct or retard the

passage of the mail, or of any driver or carrier . . . carrying

the same. Considering the purpose of the statute, the Court held

that it had no application to the obstruction or retarding of the

passage of the mail or of its carrier by reason of the arrest of the

See C. B. & C. R. R. Co. v. McGuire, 219 U. S. 549, 565; Green v. Frazier,

253 U. S. 233, 240.

— —

8 Sorrells vs. United States.

carrier upon a warrant issued by a state court. The Court said:

„All laws should receive a sensible construction. General terms

should be so limited in their application as not to lead to injustice,

oppression, or an absurd consequence. It will always, therefore,

be presumed that the legislature intended exceptions to its language

which would avoid results of this character. The reason of the

law in such cases should prevail over its letter“. And the Court

supported this conclusion by reference to the classical illustrations

found in Puffendorf and Plowden. Id., pp. 486, 487.

Applying this principle in Lau Ow Bew v. United States, 144

U. S. 47, the Court decided that a statute requiring the permission

of the Chinese government, and identification by certificate, of

„every Chinese person other than a laborer’’, entitled by treaty

or the act of Congress to come within the United States, did not

apply to Chinese merchants already domiciled in the United States,

who had left the country for temporary purposes, animo revertendi,

and sought to reenter it on their return to their business and their

homes. And in United States v. Katz, 271 U. S. 354, 362, con-

struing section 10 of the National Prohibition Act so as to avoid

an unreasonable application of its words, if taken literally, the

Court again declared that ‘‘general terms descriptive of a class

of persons made subject to a criminal statute may and should be

limited where the literal application of the statute would lead

to extreme or absurd results, and where the legislative purpose

gathered from the whole Act would be satisfied by a more limited

interpretation“. See, to the same effect, Heydenfeldt v. Daney

Gold Company, 93 U. S. 634, 638; Carlisle v. United States, 16

Wall. 147, 153; Oates v. National Bank, 100 U. S. 239; Chew

Heong v. United States, 112 U. S. 536, 555; Holy Trinity Church

In Hawaii v. Mankichi, 190 U. S. 197, 214, the Court referred with approval

to the following language of the Master of the Rolls (afterwards Lord Esher)

in Plumstead Board of Works v. Spackman, L. R. 13 Q. B. D. 878, 887: If

there are no means of avoiding such an interpretation of the statute,’’ (as

will amount to a great hardship,) a judge must come to the conclusion

that the legislature by inadvertence has committed an act of legislative in-

justice; but to my mind a judge ought to struggle with all the intellect that

he has, and with all the vigor of mind that he has, against such an interpreta-

tion of an act of Parliament; and, unless he is forced to eome to a contrary

conclusion, he ought to assume that it is impossible that the legislature could

have so intended.

Sorrells vs. United States. 9

v United States, 143 U. S. 457, 459-462; Hawaii v. Mankichi, 190

U. S. 197, 212-214; Jacobson v. Massachusetts, 197 U. S. 11, 39;

United States v. Jin Fuey Moy, 241 U. S. 394, 402; Baender v.

Barnett, 255 U. S. 224, 226; United States v. Chemical Founda-

tion, 272 U. S. 1, 18.

We think that this established principle of construction is ap-

plicable here. We are unable to conclude that it was the inten-

tion of the Congress in enacting this statute that its processes of

detection and enforcement should be abused by the instigation

by government officials of an act on the part of persons otherwise

innocent in order to lure them to its commission and to punish them.

We are not forced by the letter to do violence to the spirit and pur-

pose of the statute. This, we think, has been the underlying and

controlling thought in the suggestions in judicial opinions that

the Government in such a case is estopped to prosecute or that

the courts should bar the prosecution. If the requirements of the

highest public policy in the maintenance of the integrity of ad-

ministration would preclude the enforcement of the statute in

such circumstances as are present here, the same considerations

justify the conclusion that the case lies outside the purview of the

Act and that its general words should not be construed to demand

a proceeding at once inconsistent with that policy and abhorrent

to the sense of justice. This view does not derogate from the

authority of the court to deal appropriately with abuses of its

process and it obviates the objection to the exercise by the court

of a dispensing power in forbidding the prosecution of one who is

charged with conduct assumed to fall within the statute.

We are unable to approve the view that the court, although treat-

ing the statute as applicable despite the entrapment, and the de-

fendant as guilty, has authority to grant immunity, or to adopt a

procedure to that end. It is the function of the court to construe

the statute, not to defeat it as construed. Clemency is the function

of the Executive. Eæ parte United States, 242 U. S. 27, 42. In

that case, this Court decisively denied such authority to free

guilty defendants, in holding that the court had no power to sus-

pend sentences indefinitely. The Court, speaking by Chief Justice

White, said— if it be that the plain legislative command fixing

a specific punishment for crime is subject to be permanently set

aside by an implied judicial power upon considerations extraneous

10 Sorrells vs. United States.

to the legality of the conviction, it would seem necessarily to fol-

low thai there could be likewise implied a discretionary authority

to permanently refuse to try a criminal charge because of the con-

clusion that a particular act made criminal by law ought not to be

treated as criminal. And thus it would come to pass that the

possession by the judicial department of power to permanently re-

fuse to enforce a law would result in the destruction of the con-

ceded powers of the other departments and hence leave no law to

be enforced’’. And while recognizing the humane considerations

which had led judges to adopt the practice of suspending sentences

indefinitely in certain cases, the Court found no ground for ap-

proving the practice ‘‘since its exercise in the very nature of

things amounts to a refusal by the judicial power to perform a duty

resting upon it and, as a consequence thereof, to an interference

with both the legislative and executive authority as fixed by the

Constitution“. Id. pp. 51, 52. Where defendant has been duly

indicted for an offense found to be within the statute, and the

proper authorities seek to proceed with the prosecution, the court

cannot refuse to try the case in the constitutional method because

it desires to let the defendant go free.

Suggested analogies from procedure in civil cases are not help-

ful. When courts of law refuse to sustain alleged causes of action

which grow out of illegal schemes, the applicable law itself denies

the right to recover. Where courts of equity refuse equitable

relief because complainants come with unclean hands, they are

administering the principles of equitable jurisprudence govern-

ing equitable rights. But in a criminal prosecution, the statute

defining the offense is necessarily the law of the case.

To construe statutes so as to avoid absurd or glaringly unjust

results, foreign to the legislative purpose, is, as we have seen, a

traditional and appropriate function of the courts. Judicial nulli-

fication of statutes, admittedly valid and applicable, has, happily,

no place in our system. The Congress by legislation can always,

if it desires, alter the effect of judicial construction of statutes.

We conceive it to be our duty to construe the statute here in

question reasonably, and we hold that it is beyond our prerogative

to give the statute an unreasonable construction, confessedly con-

trary to public policy, and then to decline to enforce it.

The conclusion we have reached upon these grounds carries its

own limitation. We are dealing with a statutory prohibition and

Sorrells vs. United States. 11

we are simply concerned to ascertain whether in the light of a plain

public policy and of the proper administration of justice, conduct

induced as stated should be deemed to be within that prohibition.

We have no occasion to consider hypothetical cases of crimes so

heinous or revolting that the applicable law would admit of no ex-

eeptions. No such situation is presented here. The question in

each case must be determined by the scope of the law considered

in the light of what may fairly be deemed to be its object.

Objections to the defense of entrapment are also urged upon

practical grounds. But considerations of mere convenience must

yield to the essential demands of justice. The argument is pressed

that if the defense is available it will lead to the introduction of

issues of a collateral character relating to the activities of the

officials of the Government and to the conduct and purposes of

the defendant previous to the alleged offense. For the defense

of entrapment is not simply that the particular act was com-

mitted at the instance of government officials. , That is often the

ease where the proper action of these officials leads to the revela-

tion of criminal enterprises. Grimm v. United States, supra. The

predisposition and criminal design of the defendant are relevant.

But the issues raised and the evidence adduced must be pertinent

to the controlling question whether the defendant is a person

otherwise innocent whom the Government is seeking to punish for

an alleged offense which is the product of the creative activity of

its own officials. If that is the fact, common justice requires that

the accused be permitted to prove it. The Government in such a

ease is in no position to object to evidence of the activities of its

representatives in relation to the accused, and if the defendant

seeks acquittal by reason of entrapment he cannot complain of an

appropriate and searching inquiry into his own conduct and pre-

disposition as bearing upon that issue. If in consequence he

suffers a disadvantage, he has brought it upon himself by reason

of the nature of the defense.

What has been said indicates the answer to the contention of

the Government that the defense of entrapment must be pleaded in

bar to further proceedings under the indictment and cannot be

raised under the plea of not guilty. This contention presupposes

that the defense is available to the accused and relates only to

the manner in which it shall be presented. The Government con-

12 Sorrells vs.. United States.

siders the defense as analogous to a plea of pardon or of autrefois

convict or autrefois acquit. It is assumed that the accused is not

denying his guilt but is setting up special facts in bar upon which

he relies regardless of his guilt.or innocence of the crime charged.

This, as we have seen, is a misconception. The defense is available,

not in the view that the accused though guilty may go free, but

that the Government cannot be permitted to contend that he is

guilty of a crime where the government officials are the instigators

of his conduct. The Federal courts in sustaining the defense in

such circumstances have proceeded in the view that the defendant

is not guilty. The practice of requiring a plea in bar has not

obtained. Fundamentally, the question is whether the defense,

if the facts bear it out, takes the case out of the purview of the

statute because it cannot be supposed that the Congress intended

that the letter of its enactment should be used to support such

a gross perversion of its purpose.

We are of the opinion that upon the evidence produced in the

instant case the defense of entrapment was available and that the

trial court was in error in holding that as a matter of law there

was no entrapment and in refusing to submit the issue to the jury.

The judgment is reversed and the cause is remanded for further

proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice McReynotpds is of the opinion that the judgment

below should be affirmed.

A true copy.

Test:

Clerk, Supreme Court, U. 8.

SUPREME COURT OF THE UNITED STATES.

No. 177.—Octosrr TRM, 1932.

On Writ of Certiorari to

the United States Cir-

cuit Court of Appeals

for the Fourth Circuit.

C. V. Sorrells, Petitioner,

vs.

The United States of America.

[December 19, 1932.]

Mr. Justice Roserts.

The facts set forth in the court’s opinion establish that a pro-

hibition enforcement officer instigated the commission of the crime

charged. The courts below held that the showing was insufficient,

as matter of law, to sustain the claim of entrapment, and that the

jury were properly instructed to ignore that defense in their con-

sideration of the case. A conviction resulted. The Government

maintains that the issue of entrapment is not triable under the

plea of not guilty, but should be raised by plea in bar or be ad-

judicated in some manner by the court rather than by the jury,

and as the trial court properly decided the question, the record pre-

sents no reversible error. I think, however, the judgment should

be reversed, but for reasons and upon grounds other than those

stated in the opinion of the court.

Of late the term entrapment' has been adopted by the courts

to signify instigation of crime by officers of government. The

cases in which such incitement has been recognized as a defense

have grown to an amazing total.! The increasing frequency of

the assertion that the defendant was entrapped is doubtless due to

the creation by statute of many new crimes, (e. g., sale and trans-

portation of liquor and narcotics) and the correlative establish-

ment of special enforcement bodies for the detection and punish-

ment of offenders. The efforts of members of these forces to obtain

arrests and convictions have too often been marked by reprehensible

methods.

See O’Brien v. United States, 51 F. (2d) 674, footnote 1, p. 678.

Sorrells vs. United States.

Society is at war with the criminal classes, and courts have uni-

formly held that in waging this warfare the forces of prevention

and detection may use traps, decoys, and deception to obtain

evidence of the commission of crime. Resort to such means does

not render an indictment thereafter found a nullity nor call for

the exclusion of evidence so procured.* But the defense here as-

serted involves more than obtaining evidence by artifice or decep-

tion. Entrapment is the conception and planning of an offense by

an officer, and his procurement of its commission by one who would

not have perpetrated it except for the trickery, persuasion, or

fraud of the officer. Federal and state courts have held that

substantial proof of entrapment as thus defined calls for the sub-

mission of the issue to the jury and warrants an acquittal. The

reasons assigned in support of this procedure have not been uni-

form. Thus it has been held that the acts of its officers estop the

government to prove the offense. The result has also been justified

by the mere statement of the rule that where entrapment is proved

the defendant is not guilty of the crime charged. Often the de-

fense has been permitted upon grounds of public policy, which

the courts formulate by saying they will not permit their process

to be used in aid of a scheme for the actual creation of a crime by

those whose duty is to deter its commission.

This court has adverted to the doctrine,’ but has not heretofore

had oceasion to determine its validity, the basis on which it should

rest, or the procedure to be followed when it is involved. The

present case affords the opportunity to settle these matters as re-

spects the administration of the federal criminal law.

There is common agreement that where a law officer envisages a

crime, plans it, and activates its commission by one not thereto-

fore intending its perpetration, for the sole purpose of obtaining

a victim through indictment, conviction and sentence, the consum-

mation of so revolting a plan ought not to be permitted by any

self respecting tribunal. Equally true is this whether the offense

is one at common law or merely a creature of statute. Public

policy forbids such sacrifice of decency. The enforcement of this

policy calls upon the court, in every instance where alleged entrap-

Compare Olmstead v. United States, 277 U. 8. 488.

Casey v. United States, 276 U. S. 413.

Sorrells vs. United States. 3

ment of a defendant is brought to its notice, to ascertain the facts,

to appraise their effect upon the administration of justice, and to

make such order with respect to the further prosecution of the

cause as the circumstances require.

This view calls for no distinction between crimes mala in se and

statutory offenses of lesser gravity ; requires no statutory eonstrue-

tion, and attributes no merit to a guilty defendant; but frankly

recognizes the true foundation of the doctrine in the publie policy

which protects the purity of government and its processes Al-

ways the courts refuse their aid in civil cases to the perpetration

and consummation of an illegal scheme. Invariably they hold a

civil action must be abated if its basis is violation of the decencies

of life, disregard of the rules, statutory or common law, which

formulate the ethics of men’s relations to each other. Neither

courts of equity nor those administering legal remedies tolerate

the use of their process to consummate a wrong.“ The doctrine

of entrapment in criminal law is the analogue of the same rule

applied in civil proceedings. And this is the real basis of the

decisions approving the defense of entrapment, though in state-

ment the rule is cloaked under a declaration thet the government

is estopped or the defendant has not been proved guilty.

A new method of rationalizing the defense is now asserted. This

is to construe the act creating the offense by reading in a condition

or proviso that if the offender shall have been entrapped into

crime the law shall not apply to him. So, it is said, the true in-

tent of the legislature will be effectuated. This seems a strained

and unwarranted construction of the statute; and amounts, in

fact, to judicial amendment. It is not merely broad construction,

but addition of an element not contained in the legislation. The

constituents of the offense are enumerated by the statute. If we

assume the defendant to have been a person of upright purposes,

law abiding, and not prone to crime,—induced against his own will

and better judgment to become the instrument of the criminal pur-

pose of another,—his action, so induced, none the less falls within

the letter of the law and renders him amenable to its penalties.

‘See Hannay v. Eve, 3 Cranch. 242, 247; Bank of United States v. Owens,

2 Pet. 527, 538; Bartle v. Coleman, 4 Pet. 184, 188; Hanauer v. Doane, 12

Wall. 342, 349; Trist v. Child, 21 Wall. 441, 448; Hazelton v. Sheckells, 202

U. 8. 71; Crocker v. United States, 240 U. 8. 74, 78.

4 Sorrells vs. United States.

Viewed in its true light entrapment is not a defense to him; his

act, coupled with his intent to do the act, brings him within the

definition of the law; he has no rights or equities by reason of his

entrapment. It cannot truly be said that entrapment excuses him

or contradicts the obvious fact of his commission of the offense.

We cannot escape this conclusion by saying that where need arises

the statute will be read as containing an implicit condition that it

shall not apply in the case of entrapment. The effect of such con-

struction is to add to the words of the statute a proviss which gives

to the defendant a double defense under his plea of not guilty,

namely, (a) that what he did does not fall within the definition of

the statute, and (b) entrapment. This amounts to saying that

one who with full intent commits the act defined by law as an of-

fense is nevertheless by virtue of the unspoken and implied man-

date of the statute to be adjudged not guilty by reason of some-

one’s else improper conduct. It is merely to adopt a form of words

to justify action which ought to be based on the inherent right of

the court not to be made the instrument of wrong.

It is said that this case warrants such a construction of the ap-

plicable act, but that the question whether a similar construction

will be required in the ease of other or more serious crimes is not

before the court. Thus no guide or rule is announced as to when

a statute shall be read as excluding a case of entrapment; and no

principle of statutory construction is suggested which would en-

able us to say that it is exeluded by some statutes and not by others.

The doctrine rests, rather, on a fundamental rule of public

policy. The protection of its own functions and the preservation

of the purity of its own temple belongs only to the court. It is

the province of the court and of the court alone to protect itself

and the government from such prostitution of the criminal law.

The violation of the principles of justice by the entrapment of the

unwary into crime should be dealt with by the court no matter by

whom or at what stage of the proceedings the facts are brought to

its attention.“ Quite properly it may discharge the prisoner upon

a writ of habeas corpus.“ Equally well may it quash the indict-

ment or entertain and try a plea in bar.“ But its powers do not

Compare Gambino v. United States, 275 U. S. 310, 319.

*See United States ex rel. Hassell v. Mathues, 22 F. (2d) 979.

Compare United States v. Pappagoda, 288 Fed. 214; Spring Drug Co. v.

United States, 12 F. (2d) 852.

Sorrells vs. United States. 5

end there. Proof of entrapment, at any stage of the case, re-

quires the court to stop the prosecution, direct that the indictment

be auashed, and the defendant set at liberty.“ If in doubt as to

the facts it may submit the issue of entrapment to a jury for ad-

vice. But whatever may be the finding upon such submission the

power and the duty to act remain with the court and not with the

jury.

Such action does not grant immunity to a guilty defendant.

But to afford him as his right a defense founded not on the stat-

ute, bot on the court’s view of what the legislature is assumed to

have meant, is to grant him unwarranted immunity. If the court

may construe an act of Congress so as to create a defense for one

whose guilt the act pronounces, no reason is apparent why the

same statute may not be modified by a similar process of construe-

tion as to the penalty prescribed. But it is settled that this may

not be done. Eæ parte United States, 242 U. S. 27. The broad

distinction between the refusal to lend the aid of the court’s own

processes to the consummation of a wrong and the attempt to

modify by judicial legislation the mandate of the statute as to

the punishment to be imposed after trial and conviction is so ob-

vious as not to need discussion.

Recognition of the defense of entrapment as belonging to the

defendant and as raising an issue for decision by the jury called

to try him upon plea of the general issue, results in the trial of a

false issue wholly outside the true rule which should be applied

by the courts. It has been generally held, where the defendant

has proved an entrapment, it is permissible for the government

to show in rebuttal that the officer guilty of incitement of the

crime had reasonable cause to believe the defendant was a person

disposed to commit the offense. This procedure is approved by

the opinion of the court. The proof received in rebuttal usually

amounts to no more than that the defendant had a bad reputa-

tion, or that he had been previously convicted. Is the statute upon

In United States v. Echols, 253 Fed. 862, upon the tender of a plea of

guilty, the court of its own motion examined the prisoner and the officers

concerned in his arrest; and being satisfied that these officers had instigated

the crime, declared that public policy required that the plea be refused and

the case dismissed. In United States v. Healy, 202 Fed. 349, a judgment and

sentence were set aside and the defendant discharged upon the court’s ascer-

taining that the conviction was procured by entrapment.

6 Sorrells vs. United States.

which the indictment is based to be further construed as removing

the defense of entrapment from such a defendant!

Whatever may be the demerits of the defendant or his previous

infractions of law these will not justify the instigation and creation

of a new crime, as a means to reach him and punish him for his past

misdemeanors. He has committed the crime in question, but, by

supposition, only because of instigation and inducement by a

government officer. To say that such conduct by an official of

government is condoned and rendered innocuous by the fact that

the defendant had a bad reputation or had previously trans-

gressed is wholly to disregard the reason for refusing the pro-

cesses of the court to consummate an abhorrent transaction. It is

to diseard the basis of the doctrine and in effect to weigh the

equities as between the government and the defendant when there

are in truth no equities belonging to the latter, and when the rule

of action cannot rest on any estimate of the good which may come

of the conviction of the offender by foul means. The accepted

procedure, in effect, pivots conviction in such cases, not on the com-

mission of the crime charged, but on the prior reputation or some

former act or acts of the defendant not mentioned in the indictment.

The applicable principle is that courts must be closed to the

trial of a crime instigated by the government’s own agents. No

other issue, no comparison of equities as betweer the guilty official

and the guilty defendant, has any place in the enforcement of

this overruling principle of public policy.

The judgment should be reversed and the cause remanded to

the District Court with instructions to quash the indictment and

discharge the defendant.

Mr. Justice Branpets and Mr. Justice SToNE concur in this

opinion.