Gallagher

The appellant, Matthew Gallagher, was charged with having had morphine in his possession in violation of the state law regulating the sale and use of poisons, and upon trial before a jury was convicted. The accusation also charged and appellant admitted two prior convictions of felony, for having in a similar manner violated the same state law. Therefore, the maximum penalty under the present conviction was ten years’ imprisonment in the state penitentiary.

At the trial appellant did not deny having had possession of said narcotic, but asserted that such possession was brought about solely through the direct activities and at the instigation of state narcotic agents, for the very purpose of entrapping him, and that immediately thereupon they arrested him for the offense. In" his defense, therefore, he claimed the benefits of the doctrine of entrapment and offered an instruction upon that subject, which the court refused to give, and he now contends that such refusal con"stitutes reversible error. Respondent does not challenge the soundness of the legal principles set forth in said instruction, but contends that the evidence was insufficient ■ as a matter of law to warrant the…