
87 S.E.2d 191 (1955)
242 N.C. 164
STATE of North Carolina
v.
Bernice Lee BURNETTE.
No. 435.
Supreme Court of North Carolina.
May 4, 1955.
*194 Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.
Taylor & Mitchell, Raleigh, for defendant-appellant.
PARKER, Justice.
We have here for determination (1) the sufficiency of the evidence to carry the case to the jury, and (2) the adequacy and correctness of the charge.
The defendant assigns as error the failure of the court to sustain his motion for judgment of nonsuit made at the close of the State's case, the defendant offered no evidence, on the charge of assault with intent to commit rape; and also assigns as error a similar ruling of the Court on the charge of assault on a female. His argument in support of these motions is based on two grounds: one, no assault was committed, and two, consent of Frances Buffaloe.
The defendant contends that the State's evidence shows that he is the victim of an entrapment, and that the case should have been nonsuited. Before discussing this contention, we advert to certain relevant principles of law.
It is the general rule that where the criminal intent and design originates in the mind of one other than the defendant, and the defendant is, by persuasion, trickery or fraud, incited and induced to commit the crime charged in order to prosecute him for it, when he would not have committed the crime, except for such incitements and inducements, these circumstances constitute entrapment and a valid defense. State v. Marquardt, 139 Conn. 1, 89 A.2d 219, 31 A.L.R.2d 1206 and Annotation at page 1212; Butts v. U. S., 8 Cir., 273 F. 35, 18 A.L.R. 143 and Annotation at page 149; Robinson v. U. S., Cir., 32 F.2d 505, 66 A.L.R. 468 and Annotation at page 482; Sorrells v. U. S., 287 U. S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249 and Annotation at page 265; People v. Finkelstin, 98 Cal.App.2d 545, 553, 220 P.2d 934; Falden v. Commonwealth, 167 Va. 549, 555, 189 S.E. 329; State v. Jarvis, 105 W.Va. 499, 500, 143 S.E. 235; 22 C.J.S., Criminal Law, § 45, pp. 99-100; 15 Am.Jur., Criminal Law, Sec. 336. See also State v. Love (State v. West), 229 N.C. 99, 47 S.E.2d 712; State v. Godwin, 227 N.C. 449, 42 S.E.2d 617.
In the leading case of Butts v. U. S., supra [273 F. 38], Sanborn, C. J., said for the Court: "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 punishing it."
A clear distinction is to be drawn between inducing a person to commit a crime he did not contemplate doing, and the setting of a trap to catch him in the execution of a crime of his own conception. State v. Jarvis, supra; State v. Mantis, 32 *195 Idaho 724, 187 P. 268; 15 Am.Jur. Criminal Law, p. 24; 22 C.J.S., Criminal Law, § 45, pp. 100-101.
It seems to be the general rule in those cases where the doing of a particular act is a crime regardless of the consent of anyone, that entrapment is not available as a defense to a person, who has the intent and design to commit a crime originating in his own mind, and who does in fact commit all the essential elements constituting it, merely because an officer of the law, or another, in his effort to secure evidence against him for a prosecution, affords him an opportunity to commit the criminal act, or purposely places facilities in his way or aids and encourages him in the perpetration of the crime which had its genesis in his own mind. State v. Hughes, 208 N.C. 542, 181 S.E. 737; State v. Adams, 115 N.C. 775, 20 S.E. 722; Sorrells v. U. S., supra; Grimm v. U. S., 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550; State v. Marquardt, supra; Butts v. U. S., supra; Robinson v. U. S., supra; Falden v. Commonwealth, supra; Annotations 18 A.L.R. 149, 66 A.L.R. 482, 86 A.L.R. 265; 15 Am.Jur., Criminal Law, pp. 24-25; 22 C.J.S., Criminal Law, § 45, pp. 100-101.
This Court said in State v. Salisbury Ice & Fuel Co., 166 N.C. 366, 81 S.E. 737, 739, 52 L.R.A.,N.S., 216: "A very similar case is State v. Smith, 152 N.C. 798, 67 S.E. 508, 30 L.R.A.,N.S., 946, for selling whisky contrary to the statute, in which case a police officer, suspecting the defendant, employed one to buy whisky from the defendant and furnished the money. The defendant, like all victims caught in a trap, viciously assailed the trap. He said he ought not to be punished because the prosecutor had `connived' at his offense. This court said, `It is not the motive of the buyer but the conduct of the seller which is to be considered,' and held that the defendant was properly convicted."
In People v. Conrad, 102 App.Div. 566, 92 N.Y.S. 606, 607, affirmed in 182 N.Y. 529, 74 N.E. 1122, in a Memorandum Decision, the defendant was convicted of an attempt to commit the crime of an abortion. The Appellate Division of the Supreme Court said: "The conviction of the defendant was brought about by means of a trap arranged by the officers of the County Medical Society. It is claimed that, as the defendant was lured into the commission of the claimed overt acts, he cannot be punished therefor. This contention has recently been the subject of examination by this court and by the Court of Appeals, and decided adversely to the contention of the defendant. He was not a passive instrument in the hands of the entrapping parties. He did the act with which he was charged voluntarily, with full knowledge of the subject, and of the consequences which would flow therefrom. Under such circumstances, setting a trap by which he was caught is not a defense."
In certain crimes consent to the criminal act by the person injured eliminates an essential element of the offense, and is, therefore, a good defense. Where a person arranges for a crime to be committed against himself or his property and aids, encourages or solicits the commission thereof, such facts are a good defense to the accused. However, if a person knows a crime is contemplated against his person or property, he may wait passively and permit matters to go on, or create the conditions under which the crime against himself may be committed, for the purpose of apprehending the criminal without being held to have assented to the act. State v. Adams, supra; State v. Hughes, supra; State v. Nelson, 232 N.C. 602, 61 S.E.2d 626; State v. Abley, 109 Iowa 61, 80 N.W. 225, 46 L.R.A. 862, 77 Am.St.Rep. 520; People v. Hartford L. Ins. Co., 252 111. 398, 96 N.E. 1049, 37 L.R.A.,N.S., 778; State v. Currie, 13 N.D. 655, 102 N.W. 875, 69 L.R.A. 405, 112 Am.St.Rep. 687; Annotations 18 A.L.R. 149 et seq., 66 A.L.R. 482 et seq., 86 A.L.R. 265 et seq.; 15 Am.Jur., Criminal Law, Sec. 334; 22 C.J.S., Criminal Law, § 42.
In People v. Hartford L. Ins. Co., supra [252 Ill. 398, 96 N.E. 1052], the Illinois Supreme Court said: "One cannot arrange for a crime to be committed against himself *196 or his property and aid, encourage, or solicit the commission of the crime (Love v. People, 160 Ill. 501, 43 N.E. 710, 32 L.R.A. 139), but if he does not induce or advise the commission of the crime and merely creates the condition under which an offense against the public may be committed, the rule does not apply (People v. Smith, 251 Ill. 185, 95 N.E. 1041)."
In State v. Hughes, supra, the defendants were charged with feloniously breaking into a store to commit larceny. The State's evidence showed that the two defendants broke into and robbed the store. Defendants offered evidence which tended to show that one defendant went to an employee of the store and suggested that the employee give him the safe combination and, if so, the loot would be divided with him; the employee reported the conversation to his superior officer, who instructed him to give the defendant a purported combination to the safe; thereafter the employee gave the defendant a combination and advised him how to break into the store and when the safe would contain a large sum of money; and that the officers seized them in the execution of their offense. The defendants contended that the owner had consented to the offense, and therefore they were not guilty. The lower court excluded this evidence of the defendants, and this Court held it properly did so, saying "If it had been admitted, we do not think it would be a defense for the defendants." [208 N.C. 542, 181 S.E. 745.]
State v. Goffney, 157 N.C. 624, 73 S.E. 162, is a case where consent to the crime was a defense. In that case the evidence was that the owner of the building entered, directed his servant Farmer to induce the defendant to break in his store; that the servant obeyed his orders, and the servant and the defendant entered the store together; and that the owner was present watching them and arrested defendant after he entered.
In State v. Decker, 326 Mo. 946, 33 S.W.2d 958, 962, the defendant was convicted of bank robbery. The Supreme Court of Missouri held this instruction on the issue of entrapment properly declared the law on the case: "It informs the jury that, where the criminal intent to commit a crime originates in the mind of the defendant on trial and the offense is accomplished, it constitutes no defense that an opportunity is furnished or that an officer aided the accused in the commission of the crime in order to obtain evidence upon which to prosecute him. It then informs the jury that, if they find from the evidence that the criminal intent, if any, to rob the bank originated in the mind of defendant, and the robbery was accomplished, it is no defense to said robbery that an opportunity was furnished or that an officer aided."
This is the sixth headnote in State v. Snider, 111 Mont. 310, 111 P.2d 1047: "Where evidence showed that criminal intent to steal sheep originated in mind of accused and that at most owner and sheepherder who placed sheep in shed from which 56 lambs were loaded at night by accused remained silent and failed to place obstacles in way of accused and afforded him facilities whereby he could carry out his own criminal design without giving consent to taking, evidence warranted conviction of grand larceny as against defense of `entrapment'".
The facts in State v. Nelson, supra, are quite different from those in the instant case. In the Nelson Case there was no evidence that the prosecutrix knew that a crime was contemplated against her person by the defendant.
To convict a defendant on the charge of an assault with intent to commit rape, the State must show by evidence "not only an assault, but that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part." State v. Massey, 86 N.C. 658; approved and followed in State v. Hill, 181 N.C. 558, 107 S.E. 140; State v. Jones, 222 N.C. 37, 21 S.E.2d 812; State v. Heater, 229 N.C. 540, 50 S.E.2d 309. An *197 assault is essential to constitute the crime. State v. Overcash, 226 N.C. 632, 39 S.E.2d 810.
The evidence offered by the State, considered in the light most favorable to it on the motion for judgment of nonsuit, tends to show these facts: One, the defendant saw Frances Buffaloe the Saturday before the 29th of November, watched her walk from her husband's store to her home, and then and there an intent and design originated in his mind to satisfy his unlawful sexual lust upon her person by force and against her will. In defendant's second telephone message to her on the night of 29 November he said, "he had seen her on Saturday afternoon prior to that and had watched her walk from her husband's store to the house on the previous Saturday and that since that time that he had wanted her and intended having her before day, even if he had to come to her home and get her or kill her." Two, the defendant called her by telephone four times that night demanding that she meet him. Three, Frances Buffaloe knew that the defendant contemplated against her person the crime of rape. Four, Frances Buffaloe was afraid to stay at home that night, that she was scared for her life, unless this anonymous telephone caller was apprehended. Five, she is a woman of good character, active in her church, and her consent to meet this unknown caller, and her unlocking the automobile door, were words and acts merely creating the conditions under which the crime against herself, which had its genesis in the defendant's own mind, and which she knew the defendant contemplated against her, might be committed, for the purpose of apprehending the defendant, and that she did not assent to the defendant's assault with intent to commit rape upon her body. Six, that when the defendant opened the door, and "lunged across the seat" at her, grabbing her cloak and raising up to put his hands around her throat, an assault was committed upon her, and she was in a situation of immediate present danger, and that the defendant then and there intended to gratify his unlawful sexual passion on her person by force, notwithstanding any resistance on her part, and would have done so but for the presence of the patrolman in the back of her automobile. Seven, that Frances Buffaloe and the officers set a trap to catch the defendant, and caught him in the execution of a crime of his own conception. Eight, that the defendant committed every essential element of the crime of an assault with intent to commit rape forcibly and against her will on the body of Frances Buffaloe. The Trial Court correctly overruled the motion for judgment of nonsuit.
The defendant has five assignments of error to the charge: all relate to what the Trial Court charged the jury as to entrapment.
Whether the defendant was entitled to have the defense of entrapment submitted to the jury is to be determined by the evidence. Before a Trial Court can submit such a defense to the jury there must be some credible evidence tending to support the defendant's contention that he was a victim of entrapment, as that term is known to the law. Sorrells v. U. S., supra; State v. Marqurdt, supra; 53 Am.Jur., Trial, Sec. 291.
The evidence in this case as to what Frances Buffaloe and the officers did is not as strong as what the employee of the store did in State v. Hughes, supra, and we held that what the employee did was not a defense for the defendants. In our opinion, and we so hold, there is no evidence in the instant case tending to show that the defendant was entrapped, and such a defense should not have been submitted to the jury by the Trial Court.
However, in spite of the fact that there was no evidence to support the defendant's contention of entrapment, the Trial Judge submitted such a defense to the jury in its charge.
The Court instructed the jury that entrapment is a plan to catch by trap or trick or artifice, or to ensnare a person. No offense is committed where a person arranges for a crime to be committed against *198 himself or his property, and aids, encourages or solicits the commission thereof. If a person induces another to commit a crime against the moving party to catch him in the act which he would not have done otherwise, then the person so apprehended may set up entrapment as a defense, and is entitled to an acquittal. The defendant assigns as error the sentence in the charge immediately following the above part of the charge, to-wit: "If the person does not induce, encourage, aid or solicit the commission of a crime against himself or his property, he may wait, for it would be criminal to perpetrate an offense or create a condition under which an offense against the public may be committed." This assignment of error is without merit. Annotations: 18 A.L.R. 146; 66 A.L.R. 478; 86 A.L.R. 263.
The defendant has two assignments of error, based upon Exceptions 16 and 23, to this part of the charge: "The Court charges you that the charges laid in the bill of indictment against the defendant and upon which he is being tried, are individual rights of a person to which want of consent is an element and to which the law just given you applies. If you find from the evidence that the prosecuting witness met the defendant at the location where she was allegedly assaulted pursuant to an appointment which she and the defendant had made in a telephone conversation; that prior to her actual meeting of the defendant that the prosecuting witness had kept two previous appointments to meet the defendant, at which time the defendant did not approach the prosecuting witness, that all of the appointments which the prosecuting witness made with the defendant were at night, that at the time of the actual meeting the prosecuting witness was seated in her car under the steering wheel with only her parking lights and dash lights on; that when the defendant arrived and did approach the prosecuting witness, that she told him that she was waiting to meet someone, that on all occasions when the prosecuting witness kept appointments to meet the defendant she appeared to be alone and so appeared at the time and place of their actual meeting; that she informed the defendant as to how he might enter her automobile by going around to another side of it; that when he had gone around to another side of her automobile, she unlocked the automobile door through which the defendant entered her automobile, in which automobile a law enforcement officer was concealed, and even if you further find from the evidence that the prosecuting witness did these things for the purpose of helping the law enforcement officers in the apprehension of the defendant in the commission of an assault against her person, and which plan to assault did not originate with the defendant, or for the purpose of identifying the defendant as the party with whom she had made the appointment, then the Court instructs you that the prosecuting witness aided or encouraged such conduct as you find from the evidence that he exhibited toward her at their meeting, and that she arranged for an assault to be committed against her person by the defendant. If you further find beyond a reasonable doubt that she did know or had reason to believe that the defendant was going to commit an assault upon her, if you find from the evidence that the prosecuting witness aided the defendant in such conduct toward her at their meeting." Immediately following this part of the charge assigned as error, the Court charged as follows: "If you find from the evidence that the prosecuting witness aided or encouraged the defendant in such conduct toward her at their meeting as you find that conduct to have been from the evidence; if you find from the evidence that the prosecuting witness arranged for an assault to be committed against her person by the defendant; and if you further find that she so arranged for an assault to be committed against her person by the defendant and so aided or encouraged the defendant for the purpose of helping law enforcement officers in the apprehension of the defendant in the commission of an assault against her person for the purpose of identifying the defendant as the party with whom she had made the appointment, then the Court instructs you that the prosecuting *199 witness consented to such conduct toward her as you find from the evidence that the defendant exhibited and you must find the defendant not guilty of any crime charged or included in this bill of indictment."
The defendant contends particularly that the use of the words "and which plan to assault did not originate with the defendant" is reversible error. To sustain such contention would necessitate the overruling of the overwhelming weight of authority. Annotations: 18 A.L.R. 146; 66 A.L.R. 478; 86 A.L.R. 263.
The defendant also contends that the use of the words: "If you further find beyond a reasonable doubt that she did know or had reason to believe that the defendant was going to commit an assault upon her, if you find from the evidence that the prosecuting witness aided the defendant in such conduct toward her at their meeting," put the burden of proof upon the defendant beyond a reasonable doubt. It seems to us that in this sentence the Court started out to charge the State's position that if a person knows a crime is contemplated against his person, he may create the conditions under which the crime against himself may be committed for the purpose of apprehending the criminal without being held to have assented to the act, but did not finish the sentence. However that may be, the charge of the Court immediately before and immediately after this sentence was most favorable to the defendant because there was no evidence to support this part of the charge as to entrapment, as that term is known to the law. Reading the charge as a whole, it does not seem that this incomplete sentence could have misled the jury. Certainly it is not sufficiently prejudicial to cause a new trial.
The next assignment of error to the charge relates to a statement of the State's contentions. These contentions are amply supported by competent evidence. This assignment of error is overruled.
The last assignment of error to the charge is to this part of it: "Now, there is a difference between inducing a person to commit an unlawful act and setting a trap to catch him in the execution of the criminal offense of his own conception. No offense is committed where a person arranges for a crime to be committed against him or his property and aids and encourages and solicits the commission thereof. If the criminal intent originates in the mind of the accused and the criminal offense is completed because of the fact that an opportunity is furnished or that the accused is aided in the commission of the crime in order to secure evidence against him constitutes no defense on the part of the defendant." This assignment of error is without merit. State v. Jarvis, supra; State v. Mantis, supra; 15 Am.Jur., Criminal Law, p. 24; 22 C.J.S., Criminal Law, § 45, pp. 100-101; Annotations: 18 A.L.R. 146; 66 A.L.R. 478; 86 A.L.R. 263.
There are no assignments of error to the evidence. The other assignment of error is formal.
The defendant has been found guilty as charged in the bill of indictment by a jury under a charge highly favorable to himself. Reversible error is not made to appear. The defendant must abide by the judgment of the Trial Court.
No Error.
BARNHILL, C. J., took no part in the consideration or decision of this case.
HIGGINS, J., dissents.
BOBBITT, Justice (concurring).
The evidence, considered in the light most favorable to the State, is sufficient to support the finding by the jury that defendant, a male person over eighteen years of age, unlawfully assaulted the prosecutrix.
In the court below, defendant's counsel submitted elaborate prayers for instructions bearing upon the subject of entrapment. I agree that error, if any, in the instructions given was in defendant's favor.
*200 Furthermore, I agree that the defense of entrapment, as understood and defined in the criminal law, was not available to the defendant under the evidence. Everything prosecutrix did was done under threat or peremptory demand of defendant.
The evidence is clear that the primary purpose, if not the sole purpose, of the alleged entrapment was to identify the man who had called prosecutrix over the telephone. The plan was to contact this man and to draw him into conversation whereby he would expressly or by implication identify himself as the person who had telephoned.
The court below rightly analyzed the case. The evidence as to the appointments and meetings, and as to what occurred immediately preceding the assault, was relevant on the question of defendant's intent at the time of the assault, i. e., whether he then intended to have sexual intercourse with the prosecutrix at all events, notwithstanding any resistance she might make. On this phase of the case, after correct instructions as to the elements of the crime, the court instructed the jury as follows: "As I have already stated to you, if you are not satisfied from the evidence and beyond a reasonable doubt that the defendant assaulted Mrs. Buffaloe with the then present intent to commit rape upon her, it is your duty to return a verdict of not guilty as to that."
Included in the court's review of defendant's contentions are the following: The defendant "contends that, if you find from the evidence and beyond a reasonable doubt that he was there and did open the door of the car and get in the automobile, the circumstances, the testimony in this case, could not lead you to the conclusion that he intended to rape her; says and contends that human experience, your common sense and experience is contrary to that, because he says the most the State's evidence could possibly satisfy you beyond a reasonable doubt was that he went there by appointment, and the State so contends he went there by appointment; that on two occasions, at least one at the drive-in and one at the railroad crossing before that time, the very person that the State says was to be there, and the State contends that it was he, the defendant; that the State's own evidence tends to show that he had reason to believe that he was being met by a woman agreeing to his proposition; that she had gone twice to meet him and, having done so the third time, and having unlocked the door and invited him into the automobile, that it is contrary to human experience, contrary to common sense that he would have then, after all the arrangements were made and after the appointment was made and plans made and he was invited into the automobile, that it would have then been foolish for him to attempt to rape her there; that with all arrangements made he would have proceeded at his leisure to accomplish his purposes; therefore, he says and contends the State's own evidence negatives the idea of any attempt to rape her or to assault her with intent to commit rape when he had a right to assume, if the State's evidence is true, that he could accomplish his purpose of sexual intercourse with the woman meeting him at his leisure and in his own time, and that therefore there was no reason, and that you ought not to be satisfied beyond a reasonable doubt that he intended to rape her there; contends that he could have accomplished his purpose at any time, and the defendant says and contends you ought not to consider that charge seriously against him and that in any event you ought to acquit him of the charge of intent to commit rape." These contentions were rejected by the jury.
In my opinion the court, by the instructions quoted above and similar instructions, gave to defendant the full benefit of the circumstances bearing upon what he calls entrapment as related to the only issue on which such evidence was germane.
