State v. Nelon

61 S.E.2d 626 (1950) 232 N.C. 602

STATE

v.

NELON.

No. 77.

Supreme Court of North Carolina.

November 8, 1950.

*628 Atty. Gen., Harry McMullan, Asst. Atty. Gen., T. W. Bruton, Walter F. Brinkley, Raleigh, member of the staff, for the State.

I. C. Crawford, Robert S. Swain, Asheville, for defendant appellant.

WINBORNE, Justice.

While defendant has brought forward and debated in this Court, by brief and orally, numerous assignments of error based on exceptions taken during the course of the trial, express consideration is required only as to the twelfth and thirteenth.

In this connection, defendant contends that the State had introduced evidence tending to show a conference between Janet Haynes and officer Gibbs before she went out to meet defendant, and indicating in part the subject discussed in the conference. Hence the purpose of the questions was to show that Janet Haynes acted freely and voluntarily; that she knew she was going to meet defendant, and had agreed to meet him for the purpose of getting him to say or do something to her that would constitute a criminal offense; and that in effect she consented to all that was done. In other words, that defendant was lured into putting his hands upon the person of Janet Haynes, that is, entrapped to commit an offense with the view to prosecution therefor.

It is a principle of law that in those crimes in which an essential element is the violation of individual rights of persons, an entrapment must not be under such circumstances as will amount to the consent of the person affected. If want of consent is an element of a crime, an act done with the consent of the person affected cannot be made the basis of a criminal charge. It is said that no offense is committed where a person arranges for a crime to be committed against himself, and aids, encourages or solicits the commission of it. 15 Am. Jur. 23 , Criminal Law 334, 336. Annotation on subject "Entrapment to commit crime with view to prosecute therefor", 18 A.L.R. 146 and 86 A.L.R. 263 .

In the light of these principles the matters to which the exceptions under consideration relate were material to the defense interposed by defendant. Indeed, the materiality is emphasized by the denial of motion of defendant to be permitted to recall Janet Haynes for further crossexamination, to which no exception was taken. Defendant was entitled to an opportunity to develop his defense.

For error pointed out, there must be a new trial.