Brantley v. State

65 So. 512 | Miss. | 1914

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for acting as agent or assistant of the purchaser in the unlawful purchase of intoxicating liquor. A Mr. Sykes gave to appellant three dollars, and requested him to purchase for him (Sykes) some whisky. This appellant did, purchasing the whisky from a woman named Smith, and delivering it to Sykes. The testimony for appellant was to the effect that he had been requested by a deputy sheriff to assist him in ferreting out “blind tigers,” and particularly to assist him in obtaining evidence that Mrs. Smth was engaged in the unlawful sale of liquor; that after this money had been given him by Sykes, and before purchasing the liquor, he reported the fact to the deputy sheriff, who then requested him to make the purchase, so that evidence might be obtained against, Mrs. Smith, promising that he (the deputy sheriff) would see that no harm resulted to him for so doing. This evidence was excluded.by the court, and the court’s, action in so doing is assigned for error.

In support, of appellant’s contention we have been referred to a long line of cases holding that “the pretended confederate who, as detective, spy, or decoy, associates with wrongdoers in order to obtain evidence”' is not an accomplice, provided he “has made himself an agent for the prosecution before associating with the' wrongdoers or before the actual perpetration of the offense.” All of these cases, except State v. Torphy, 78 Mo. App. 206, are cases wherein it was sought to apply to the evidence of such persons the rules governing that of an accomplice. In State v. Torphy it was held that such a person was not punishable, although he so far co-operates with his confederates as to be guilty if his intention had been the same as theirs.

Conceding for the sake of the argument that the rule here invoked is sound, the case at bar does not come within it, for the reason that appellant is not being prosecuted for selling liquor, nor for assisting the seller in selling liquor; he is being prosecuted for the substantive crime of acting as agent for the purchaser of liquor. This is a crime distinct from, and not included in, the crime of selling liquor, the commission of which was wholly unnecessary in order for appellant to obtain the evidence which he claims to have been seeking. Stated most favorably for him, what > he did amounts simply to this: That, in order to provide Mrs. Smith with an opportunity of violating the law, • he himself committed a crime distinct from, and not included in, the one she was thereby induced to commit.

Affirmed.