Pointer v. State

Sybert, J., delivered the opinion of the Court. The appellant, Pointer, was convicted as a third offender in two cases of the sale, possession, and control of a narcotic drug, after non-jury trials. He was sentenced to two concurrent fifteen year terms in the penitentiary. ⁶⁴³ The appellant’s first two contentions on this appeal are that he was entrapped by the federal narcotics officer who testified appellant sold him heroin twice, and that he was merely the agent of the officer so that his sale, possession and control of the drug were those of the officer. The officer’s testimony was that appellant approached him and asked whether he wanted to buy some heroin, saying it was “all right” to do business with him.

The officer gave him $30.00 for heroin, but he left and did not return. The officer saw appellant some weeks later, and, after an excuse concerning the $30.00, appellant asked whether the officer wanted to buy any heroin at that time. After receiving an affirmative reply, appellant procured a quantity of heroin and handed it to the officer, who paid him $20.00. Three days later, under similar circumstances, appellant again sold heroin to the officer.

Testifying in his own behalf, appellant admitted that he had received $30.00 from the officer on the first occasion and that he had promised, but failed, to deliver heroin. He contended that the officer had approached him. He said that when he met the officer on the second occasion the latter asked him about the money and stated that “he would jump on my chest if I didn’t return his $30.00.” The officer then handed him $20.00 and told him to get him “two decks”. Appellant said he kept this money also and never delivered any heroin to the officer.

He denied that he met with the officer on the third occasion. He admitted that he had previously been convicted of narcotics law violations in 1951 and 1955, and that he was a user of heroin. Appellant bases his defense of entrapment upon the claim that there was “repeated and persistent solicitation” by the federal officer (the latter’s testimony was that each illegal transaction originated with appellant) ; upon the assertion that between the first and second contacts the officer “openly searched” for him and