Defendant was indicted on two counts (1) for possessing and (2) for selling, on July 13, 1930, one-half gallon of whisky in violation of the National Prohibition Act (27 USCA). 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 followed, 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. 287 U.S. 584, 53 S.Ct. 19, 77 L.Ed. --.
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, N.C., where he posed as a tourist, he visited defendant's home near Canton, on Sunday, July 13, 1930, accompanied by 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 Thirtieth Division A.E.F. Witness informed defendant that he was also an ex-service man and a former member of the same Division, which was ture. 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 Thirtieth Division, and the conversation turned to the war experiences 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 $5. Martin also testifed 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 testimony.
Defendant called as witnesses the three persons who had accompanied the prohibition agent. In substance, they corroborated the latter's story but with some additions. Jones, a railroad employee, testified that he had introduced the agent to the defendant 'as 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 defendant that he 'would like to get a half gallon of whisky to take back to Charlotte to a friend' of his that was in the furniture business with him, and that defendant replied that he 'did not fool with whisky'; that the agent and his companions were at defendant'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.' Defendant 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 believed 'one former war buddy would get liquor for another.'
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 continuously 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.