¶1I dissent.
¶2I am of the opinion that the judgment should be reversed for failure to instruct the jury on the defense of entrapment. There is evidence in the record which would support a verdict based on that defense. The police officers induced Frank Lombardi, a friend of defendant, to solicit her to commit the criminal act here involved.
¶3The police officer involved in the entrapment testified:
“Q. You, either alone or with the assistance of someone else conceived the idea of setting into motion a set of circumstances to cause someone to commit a crime, isn’t that correct? ... A. Yes.”
¶4After the solicitation by Lombardi the police officers posed as decoys and made further solicitation of defendant which culminated in the consummation of the crime. The jury could have concluded that the police originated and set in motion a scheme to cause defendant to commit a crime. This could be interpreted to mean that regardless of the innocent or guilty frame of mind of the victim, the police sought to cause her to commit a crime. • This purpose was carried out, the first step being a telephone call by Lombardi to defendant asking her to violate the law. In Cline v. United States, 20 F.2d 494, *67defendant procured a narcotic for a dope addict upon the solicitation of the latter whom he knew and who was acting in fear of the police in making the solicitation. The court held there was entrapment as a matter of law. In United States v. Eman Mfg. Co., 271 F. 353, the government agent, pretending to he a customer for defendant’s medicinal product, “Sulfox,” wrote to defendant asking it to send him some. Defendant did so but misbranded the Sulfox which constituted a violation of the food and drug laws when the article was placed in interstate commerce. The court held there was entrapment. In People v. Gallagher, 107 Cal.App. 425 [290 P. 504], the officers had Dali, an addict and seller of drugs, solicit defendant, an addict, to buy drugs. The drug was left on the street, and, at Dali’s request, defendant paid for it and picked it up whereupon he was arrested for illegal possession. The judgment of conviction was reversed for failure to instruct on entrapment, the court stating (p. 429) : “It must be borne in mind’that appellant was not charged with having sold or bargained to sell any drugs; nor was any evidence whatever introduced to show that such was his intention. The present case, therefore, is quite different from those upon which respondent seems to rely, showing that a defendant was already in the illegal possession of an article, but was entrapped into selling it. In the case at bar the theory of appellant’s defense was that the possession by him of said drug was brought about solely through the instrumentalities of the state’s agent and those working under him, for the very purpose of causing his arrest. As said in the case of In re Moore, 70 Cal.App. 483 [233 P. 805, 806], ‘It may be conceded that it would he violative of sound public policy and repugnant to good morals to uphold the conviction of a person who, being entirely innocent of any intention to commit a crime, was inveigled into its commission by an officer of the law or by a private detective hired for that purpose by some self-constituted guardian of the public morals. (People v. Barkdoll, 36 Cal.App. 25 [171 P. 440].) ’ ”
¶5My views on entrapment were expressed in my dissent in People v. Braddock, 41 Cal.2d 794, 803 [264 P.2d 521],
¶6For the foregoing reason I would reverse the judgment.
¶7Schauer, J., concurred.
¶8Appellant’s petition for a rehearing was denied February 21, 1956. Carter, J., and Schauer, J., were of the opinion that the petition should be granted.