State v. Schultz

501 P.2d 106, 28 Utah 2d 240, 1972 Utah LEXIS 840

Opinions

TUCKETT, Justice:

The facts we are concerned with in this case are found in the former opinion of the court.¹ We granted a rehearing for the purpose of giving further consideration to the claim of defendant that the issue of his agency should have been submitted to-the jury.

The defendant having been charged with the selling of a narcotic drug rather than being in possession of the same raises an issue under the facts of this case as to whether or not the defendant was an agent of the enforcement officer.- The facts would support the proposition that defendant was induced by the enforcement officer to procure the controlled substance as the sole agent of the officer, and that the defendant had had no prior association with the seller nor was he acting in concert with the seller in the transaction. The record would also support the proposition that the defendant did not profit from the transaction.

In view of the circumstances we are of the opinion that the defendant’s requested instruction, or one of like import, dealing with the defendant’s agency, should have been submitted to the jury. Admittedly, there is a division in the decisions of other jurisdictions which have construed the Uniform Narcotics Drugs Act but we have elected to follow the decisions handed down by Massachusetts, New York and Texas which appear to us to be the better reasoned.²

This case is remanded to the court below for a new trial.

CALLISTER, C. J., and HENRIOD, J., concur.

Footnotes

1

. 27 Utah 2d 391, 496 P.2d 893.

2

. Durham v. State, 162 Texas Cr.R. 25, 280 S.W.24 737; Townsel v. State, 162 Texas Cr.R. 433, 286 S.W.2d 162; People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427; People v. Fortes, 24 A.D.2d 428, 260 N.Y.S.2d 716; Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346.