¶1dissenting: I respectfully dissent from the holding of the majority in respect to the issue of entrapment. In my judgment the defense of entrapment should be sustained as a matter of law under the particular facts and circumstances presented in this case. I have no quarrel with the statement of legal principles as set forth in the opinion of Justice Kaul. The majority opinion approves the statement of the law of entrapment adopted in State v. Wheat, 205 Kan. 439, 469 P. 2d 338. In that case this court declared that the *222law does not tolerate a person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose, the original intent to commit a crime thus entrapping such person into the commission of crime which he would not have committed but for such inducement, and where a crime is committed as a consequence of such entrapment, no conviction may be had with a person so entrapped as his acts do not constitute a crime. In other words a defendant can rely on the defense of entrapment when he is induced to commit a crime which he had no previous intention of committing, but cannot rely on the defense when he has a previous intention of committing a crime and is merely afforded the opportunity to complete the crime by the peace officer.
¶2The opinion of the majority approves the proposition that once an inducement or solicitation by a police officer has been shown, the state has the burden of proving a previous intention to commit the crime in order to rebut the entrapment. The majority opinion concedes that in the case at bar the previous intention is not shown by evidence of prior convictions, criminal activity or previous suspicious conduct. The majority opinion relies upon the proposition that uncensorable solicitation by a police officer met with ready compliance by the actor is generally accepted as evidence of previous intention. I have no quarrel with this statement of law where under the facts of the case the nature of the response to the solicitation raises a reasonable inference of previous intention to commit the offense.
¶3Let us examine the undisputed facts presented in the case at bar:
¶4(1) The Wichita police officers provided marked currency and originated an exploratory probe to be conducted at the Odessa Club in Wichita. Detective Rick Palone and policewoman, Charlotte McPhetters, were to act as the buyers. An undercover agent, whose exact identity was not established in the record but who was assigned the name of John Nichols, was to be the solicitor.
¶5(2) There was no evidence of any previous sale of narcotics having taken place at the Odessa Club and no particular person was sought for the buy.
¶6(3) The police undercover agent, Nichols, inquired among the 200 odd people at the Odessa Club asking people if they had any marijuana for sale or knew as to where he could get some.
¶7(4) The defendants, Fouch and Reichenberger, were sitting at *223one of the tables in the club drinking beer and listening to the band. Neither of the defendants had any previous history of possession or sale of marijuana or other narcotics. The record contains no evidence to show that either of the defendants was engaged in the business of selling narcotics.
¶8(5) Nichols approached the defendants and asked them if they had any marijuana. Their answer was “No”.
¶9(6) Nichols told the defendants that a friend wanted him to buy some marijuana and had offered him $105 for an ounce; that he Nichols would pay defendant Fouch $100 for an ounce so Nichols would make $5 off of the deal. It is important to note that the police undercover agent suggested the price to the defendants. It should also be noted that it was the police agent who offered an inducement for the commission of the crime.
¶10(7) Nichols asked the defendants if they could get some marijuana. The defendant Fouch said they might be able to.
¶11(8) After Nichols had made the solicitation and inducement, Fouch asked other patrons of the Odessa Club where he could buy marjuana. Someone informed Fouch that a Mexican who was in the place playing pool was the one selling marijuana. It should be noted that the undisputed evidence is that the defendants did not have previous knowledge of a source of supply of marijuana. It was necessary for them to make inquiry of others to locate a source of supply.
¶12(9) The unidentified Mexican left the Odessa Club, procured the marijuana, and returned to the club. Defendants paid him $75. The undercover agent Nichols received the package of marijuana.
¶13(10) Nichols and the defendants left the Odessa Club and met the other undercover police officers, Charlotte McPhetters and Rick Palone, who were handed the marijuana. The police officers then induced the defendants to obtain additional marijuana for them.
¶14In my opinion the nature of the response by defendants to the solicitation in this case was not sufficient to raise a reasonable inference of any previous intention to commit the crime. In the first place it should be emphasized that there is no evidence to show the defendants were sellers of marijuana at the time of the solicitation or inducement. They had no marijuana in their possession available for sale. It is likewise undisputed that at the time of the inducement or solicitation the defendants had no knowledge of a source of supply of marijuana and had to obtain information as *224to a source of supply from other patrons at the club. It should also be noted that the defendants did not have a ready quotable price for the marjuana and the amount to be paid was suggested by the undercover police agent.
¶15In its essence the basis of my dissent is that the undisputed evidence is not sufficient to raise a reasonable inference that either of the defendants had any prior intention to commit the offense charged. As the majority opinion states the law should not tolerate a law enforcement officer generating in the mind of a person who is innocent of any criminal purpose the original intention to commit a crime thus entrapping such person in the commission of a crime that he would not have committed or even contemplated but for such inducement. I would reverse the case with instructions to discharge both defendants.