                                         No. 12163

          I N THE SUPREME COURT O T E STATE O MONTANA
                                 F H         F

                                            1972



THE STATE O MONTANA,
           F

                                 P l a i n t i f f and Respondent,

          -vs   -
JEFFREY HARNEY ,

                                 Defendant and Appellant.



Appeal from:        D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
                    Honorable Frank E. B l a i r , Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

          Maffei and Harrington, B u t t e , Montana.
          Maurice Maffei argued, B u t t e , Montana.

     For Respondent:

          W. G. G i l b e r t 111, argued, County Attorney, D i l l o n ,
            Montana.
          Robert L. Woodahl, Attorney General, Helene, Montana.
          J. C. Weingaxtner argued, A s s i s t a n t Attorney General,
            Helena, Montana.



                                                              Submitted:         June 14, 1972

                                                                 Decided : JuL 8 8 1972

Filed :   JUL 2 8 1978
Mr. Justice Wesley Castles delivered the Opinion of the Court.
          The appellant, Jeffery Harney, was charged with the crime
of sale of dangerous drugs.       He was convicted and sentenced to
three years in the state penitentiary with all but one year sus-
pended.     From that conviction hk~ p ~ w ~ g k.a n
                                   a
          Appellant was a resident of Butte, Montana, having been
born and raised in that community.        In September 1969 he moved
to Dillon, Montana, where he enrolled at Western Montana College.
          In the spring of 1971, a Dan Jimmerson, who was also a
student at Western Montana College, approached the Beaverhead
County sheriff's office.      Jimmerson said he was concerned with
the drug problem in the area and asked if he could assist the
local law enforcement personnel in curbing the drug traffic.
The sheriff's office accepted his offer and told him to try to
associate with drug users on the campus.
          In the latter part of March, 1971, Jimmerson went to the
apartment of the appellant and told him that he had heard he was
going to Missoula to purchase some drugs.        Jimmerson asked the
appellant to purchase some drugs for him if he was able to make
a buy in Missoula.      The appellant told him he would.    The next
day Jimmerson asked appellant if he had been able to secure any
drugs; the appellant said he was not able to purchase any at that
time.
        About two weeks later Jimmerson heard that Harney had some
drugs for sale.     Jimmerson went again to the apartment of appel-
lant and asked him if he had any drugs for sale. Appellant replied
he had some and showed Jimmerson a baggie which was reportedly full
of hash.     Appellant agreed to sell Jimmerson two grams for $5.00
each.     Jimmerson told appellant he did not have the money at that
time and made arrangements to make the buy the following day.
       Jimmerson then contacted the local law enforcement of-
ficials and they agreed to set up surveillance at the local
baseball field where the sale was to take place.      At 6:00 p.m.
the appellant arrived at the park where they made the sale in
his automobile.    After the sale both appellant and Jimmerson
were arrested by the law enforcement authorities.

       The case was tried before a jury, commencing on June 14,
1971, and on June 16, 1971, the jury returned a verdict of guilty.
The court fixed August 9, 1971 as the date for the hearing on
what the court called "aggravation and mitigation of sentence".
       On April 6, 1971, when the information was filed, the
appellant was twenty years of age.      Section 54-132(b), R.C.M.
1947, provides that "   * * *   Any person of the age of 21 years or

under convicted of a first violation under this section shall be
presumed to be entitled to a deferred imposition of sentence."
Absent evidence to overcome the presumption, appellant was en-
titled to a deferred imposition of sentence.      The hearing, called
an "aggravation and mitigation" hearing, was held, at which time
the court heard evidence on behalf of appellant and for the State.
Included in the evidence for the State were two affidavits which
were allowed into evidence over the objections of appellant.
These affidavits accused appellant of previous dealings in drugs.
At the conclusion of the evidence the Court held that appellant
was not entitled to a deferred imposition of sentence.      Appellant
was sentenced to three years with all but one year suspended.
       Appellant divides the alleged errors on this appeal into
basically four parts.    We shall discuss them in the same manner.
These parts are:    (1) Error in admitting certain photographs into
evidence; (2) failure of the State to prove the necessary venue;
( 3 ) error of the district court in not granting a motion for a

directed verdict in favor of appellant on the grounds that there
was entrapment as a matter of law; and ( 4 ) whether there was
sufficient evidence to overcome the presumption that appellant
was entitled to a deferred imposition of sentence.
        Appellant's first specification of error alleges the ad-
mission of certain photographs was prejudicial and they should
have been excluded.     We find no merit in this argument.       The
pictures were necessary in order that appellant be properly,
affirmatively and conclusively identified.           Photographs are ad-
missible whenever relevant to describe a person, place or thing.
State v. Logan, 156 Mont. 4 8 , 4 7 3 P.2d 8 3 3 .   Appellant had, at
the time he was arrested, an "Afro" type hair style.          At the time
of the trial, appellant did not have this same type of hair style.
These pictures were admitted to bolster the identity of the ac-
cused, since his appearance was notably different at the time of
the trial than it was at the time he was observed by the witnesses.
We do not find that these pictures were introduced to prejudice
the jury against appellant.      They were allowed because they were
relevant to identify the accused.
        The next alleged error on appeal is that the State failed
to establish the proper venue.       After a careful reading and study
of the record we find the necessary venue was established.
        During the trial, Fred Rebish, who testified that he was
a deputy sheriff in Beaverhead County, gave an account of where
the arrest took place.      He testified that he was familiar with
the city park in Dillon, and it was at this park, called Vigilante
Park, that the sale took place.       Another witness, Raymond Davis,
who also stated he was an undersheriff with Beaverhead County,
testified as to the arrest of appellant.   He also referred to the
park where the sale took place and he stated he left a trailer on
Thomson Street before making the arrest of appellant.
        This Court has already given some guidelines with reference
to establishing the proper venue.   In State v. Anderson, 156 Mont.
122, 476 P.2d 780, we stated that when it is established that the
crime took place in a town within this State, by reference in the
record to the town itself, or to buildings and streets within that
town, or that the investigating officers .from that local law en-
forcement agency investigated the crime, the court can take judi-
cial notice that the town is within its own appropriate county in
establishing venue.
        In the instant case, w,exb&ksmit was established that
this sale took place in the city park of Dillon.   There was refer-
ence to the park, the city, reference to streets within Dillon,
and testimony that the arresting officers were from the local Dillon
and Beaverhead County sheriff's office.    Since it was established
that this took place in Dillon, the court was correct in taking
judicial notice that Dillon is within Beaverhead County.
        Appellant now alleges there was    entrapment as a matter
of law and that a directed verdict should have been given.   We again
fail to see any error and uphold the action by the district court.
It seems clear that present Montana case law indicates there was
no entrapment on these facts.
        In this case it is clear that Jimmerson did not induce this
sale.   Jimmerson merely asked appellant if he could furnish him
with some drugs.   He did not plead, beg, or coerce the appellant
into selling.   This casual offer to buy is not sufficient to avail
the appellant with the defense of entrapment.
         This Court has recently ruled on the issue of entrapment.
In State v. Karathanos, 158 Mont. 461, 493 P.2d 326, 29 St.Rep.
81,88, this Court said:
         "Defendant now contends that he was entrapped into
         committing the offense charged. With this con-
         tention, we cannot agree. Entrapment occurs only
         when the criminal intent or design originates in
         the mind of the police officer or informer and
         and not with the accused, and the accused is lured
         or induced into committing a crime he had no in-
         tention of committing. Only when the criminal
         design originates, not with the accused, but in
         the mind of government officers and the accused
         is by persuasion, deceitful representations, or
         inducement, lured into the commission of a crim-
         inal act, can a case of entrapment be made out.
         In short, there is a controlling distinction be-
         tween inducing a person to do an unlawful act and
         setting a trap to catch him in the execution
         of a criminal design of his own concept. The
         fact that the Yellowstone County sheriff's office
         afforded the opportunity or facility for the com-
         mission of the offense, does not come within the
         entrapment rule. In this class of offenses,
         usually committed secretly, it is difficult if
         not almost impossible to secure the evidence
         necessary to convict by any other means than by
         the use of decoys. Certainly, there can be no
         objection to their use if the officers do not
         by persuasion, deceitful representations or in-
         ducement, lure a person who otherwise would not
         be likely to break the law, into a criminal act.
         State v. Wong Hip Chung, 74 Mont. 523, 241 P.
         620; State v. Parr, 129 Mont. 175, 283 P.2d 1086;
         22 C.J.S. 137, § § 45(1), 45(2), 45(4)."
         The rationale of the Karathanos case applied in this case
leads to the conclusion that there was no entrapment.   Here
appellant was caught in the execution of his own criminal act.
The Beaverhead County sheriff's office merely afforded the appel-
lant the opportunity to commit the offense.
         The final area of this appeal is the question of whether
the State introduced sufficient evidence to overcome the presurnp-
tion that appellant was entitled to a deferred imposition of sen-
tence.
         In denying appellant a deferred sentence, the district
judge stated that: "Apparently your reputation is such that
you have been-engaged in this sort of thing for several years
here".    From the record there is no evidence to support this
statement by the court.       There was a hearsay statement in the
report of the presentence investigation which was nothing more
than a mere rumor.    It was reported that someone at the college
stated the appellant was engaged in the sale of dangerous drugs.
There were also two affidavits, introduced over objection, which
accused the appellant of prior dealings in drugs.      Yet appellant
had no opportunity to cross-examine the affiants or even deter-
mine if they were known to him.
         These affidavits should not have been admitted or con-
sidered by the court.    In allowing the admission of the affidavits
                      * * *
the court stated:    "khis is not the trial of the case.    It's simply
a showing of the mitigation and aggravation of the offense charged,
so the objections will be overruled and they [the affidavits]
may be deemed read into evidence".      It is true thiswasnot a trial
of the case, however it is also true that the rights of appellant
must be protected.   Due process must be observed in hearings of
this nature.    The appellant was denied his right to cross-examine
these witnesses in this hearing.      This Court realizes that a
district judge must have some discretion in sentencing an offender,
but the protection of the individual's guaranteed rights must come
first.    It is necessary that the rules of evidence be followed in
these hearings, so that due process will be ensured.
         To overcome this presumption of the deferred imposition
of sentence, certain standards have been enumerated by this Court.
                                  327,
In Campus v. State, 157 Mont. 321,/483 P.2d 275, we stated:
      " * * * Since we still have these statutory
      presumptions, some confusion appears in what
      type of evidence is sufficient to overcome the
      presumptioh. First, we interpret it to mean
      that the record itself must disclose the evi-
      dence, as we held in Simtob. Second, the evi-
      dence may be contained either within or without
      the proof of the crime itself. Third, the
      aggravating circumstances should be some sub-
      stantial evidence over and above the simple
      facts of a prima facie case. Finally, it is
      clear that this Court will require hearings
      and    a record to disclose the aggravating
      evidence, if there be no express voluntary
      waiver as in this case."
       Examining the instant case in the light of these stand-
ards, we find that they have not been met.   First, the record
does not disclose sufficient evidence to rebut the presumption.
Second, there is no aggravating evidence contained within or
without the proof of the crime itself, Third, there is no sub-
stantial evidence showing any aggravated circumstances over and
above the facts of a prima facie case of a dangerous drug sale.
Finally, though there was a hearing, the record does not disclose
sufficient credible evidence of any aggravated circumstances.
       Accordingly, the sentence of the district court is vacated;
the appellant is ordered to return to the district court and this
cause is remanded to the district court for imposition of a de-
ferred sentence for such term, and subject to reasonable conditions
of probation in the discretion of the sentencing judge.



                                   Associate Justice
