115 So. 705 | Miss. | 1928
The testimony for the state tended to show that one Schneider was an employee of the federal prohibition forces, and was assigned to the Mississippi Gulf Coast for the purpose of apprehending violators of the federal prohibition laws. The appellant, at the time, was a resident of Pass Christian. Schneider and French planned a trip from the coast to Jackson. They left in Schneider's car on a certain Saturday night, accompanied by their wives. French loaded, or caused to be loaded, into said car five cases of whisky, having obtained same from a secluded place a mile or more from his home. It was brought to supply his customers in the city of Jackson. They arrived early Sunday morning at the home of one Boateler, a resident of Rankin county, and *687 the father-in-law of Schneider. French requested permission of Boateler to store the liquor in his house until the next day, stating his reason for making such request was that he would be unable to see his customers on Sunday. After some hesitation, Boateler agreed that the whisky might be stored in his smokehouse. All of them stopped at Boateler's for breakfast. Later in the day, Schneider drove into Jackson and reported the matter to his superior officer, a Mr. Chapman, who, immediately went to the home of Boateler, and arranged for the purchase by Boateler from French, of six quarts of the said whisky, giving him twenty-five dollars with which to pay for same. On Monday following, Boateler bought the six quarts of whisky from French, paying for it with the money left by Chapman.
The testimony for appellant tended to show that Schneider was the moving spirit in the whole transaction; that it was Schneider's whisky; that he (French) had nothing to do with loading the whisky in the car, but that Schneider placed it there; that Schneider owed him a large sum of money; and that Schneider intended to apply the proceeds of the sale of all this whisky on said debt. Appellant further testified that Schneider represented that, in his capacity as federal prohibition officer, he had a right to sell whisky for the purpose of catching law violators. Appellant further testified that he at first demurred to selling any part of this whisky; that he had formerly been "mixed up" in selling whisky; did not want to become involved again; and, but for the representations of Schneider, he would not have been connected with this sale.
The proof further shows that the appellant was an old offender against the prohibition laws, having pleaded guilty in the state and federal courts to selling intoxicating liquor. It is not denied that the sale was made by French to Boateler. Appellant attempts to justify the sale on the ground that he was induced by the officer, *688 Schneider, to make it; in other words, the sole defense is what some of the law books designate as "entrapment."
The point was raised in the trial court by three skillfully drawn instructions, each presenting this defense in varied phases. The trial court refused to grant these instructions. The question of whether or not entrapment was a defense in this case is therefore sharply raised. The proposition arises for the first time in this court. Appellant cites Strait v. State,
Cornelius on Search and Seizure, p. 163, under the title of "Entrapment of Defendant," says:
"In the absence of special circumstances excusing it, a person who, at the suggestion of another, commits a crime not particularly affecting an individual in person or property, is just as guilty as though the design had originated with him, and this is true, though the suggestion came from an officer of the law. Of this class are crimes involving the illegal sale of intoxicating liquor."
Discussing the same subject (16 C.J., p. 88), it is said: "The general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the crime was done *689 at the `decoy solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission."
The same authority on page 89 further states: "It is generally held that it is no defense to a prosecution for an illegal sale of liquor that the purchase was made by a spotter, detective, or hired informer."
We quote from 8 R.C.L. 129, as follows: "In regard to crimes that do not particularly affect individuals in their persons or property, but involve an unlawful business, such as the unlawful traffic in intoxicating liquors, improper use of the mails, passing counterfeit money, etc., there is no individual whose consent will excuse it. In most of such cases positive evidence against wrongdoers is usually obtainable through decoys or detectives, and in prosecution based on information thus obtained, it has been argued that the act was done at the instigation or solicitation of an agent of the government, and that therefore there could be no conviction. To this argument, the courts have responded that the purpose of the detective is not to solicit the commission of a crime but to ascertain whether the defendant is in an unlawful business."
See, also, 1 Bishop on Criminal Law (9 Ed.), p. 685.
In Borck v. State, 39 So. 58C, the supreme court of Alabama held: "The fact that Plunkett was an officer of the law can make no difference, since an officer could not, by giving his consent to the sale, any more justify the act on the part of the defendant than would be the consent of any private person."
State v. Currie,
"Without commending this practice, or commenting upon it as dangerous and generally of doubtful propriety, *690 we will say that, if the defendant is shown to have committed the crime in its completeness, the feigned complicity of a detective in the crime should not be a shield to the defendant. The authorities almost unanimously hold that a detective may aid in the commission of the offense in conjunction with a criminal, and that the fact will not exonerate the guilty party."
People v. Mills,
"We are asked to protect the defendant, not because he is innocent, but because a zealous public officer exceeded his powers and held out a bait. The courts do not look to see who held out the bait, but to see who took it. When it was found that the defendant took into his possession the property of the state with intent to steal it, an offense against public justice was established, and he could not insist as a defense that he would not have committed the crime if he had not been tempted by a public officer whom he thought he had corrupted. He supposed he had bought the assistant district attorney when he handed over the money, but he knew he had not bought the state of New York, and, hence, that the assistant had no right to give him its property for the purpose of enabling him to steal it."
In Grimm v. United States,
"The law was actually violated by the defendant; he placed letters in the post office which conveyed information *691 as to where obscene matter could be obtained, . . . and the fact that the person who wrote under these assumed names and received his letters was a government detective in no manner detracts from his guilt."
In City of Evanston v. Meyers,
"The appellee [defendant] committed the act charged against him, deliberately and voluntarily, and in such a manner as to indicate that he would have sold beer to any other person applying for it." Ramsey v. United States (C.C.A.), 268 F. 828; Saucedo v. United States (C.C.A.), 268 F. 830; Farley v. United States (C.C.A.), 269 F. 721.
Two of the last three cases cited rely upon the Grimm case,supra, as controlling authority.
There is an exhaustive case note appended to the case ofButts v. United States, 18 A.L.R. 143. At page 162, the author lays down this headnote:
"The great weight of authority supports the view that a person making an unlawful sale of liquor is not excused from criminality by the fact that the sale is induced for the sole purpose of prosecuting the seller."
Marshaled under this headnote are cases from eighteen states, as well as a number of federal cases.
There is proof abundant in this case to show every element of a completed sale. Appellant is not charged with a crime involving the personal or property rights of individuals, such as theft, burglary, trespass, rape, and kindred offenses, where the consent of the person or owner might be an element of the offense. It is made a crime against the state to sell whisky; and it will not avail defendant to say, "I had no intention of violating the law." A sale of intoxicants is a violation of the law, regardless of the intent of the seller. Bacot v. State,
The court below committed no reversible error in refusing the instructions requested by appellant. The judgment of the lower court will therefore be affirmed.
Affirmed.
