People v. McIntyre

218 Mich. 540 | Mich. | 1922

Sharpe, J.

The first count in the information filed against defendant charged him with unlawfully selling one quart of whisky to William L. Waltman at the township of Grass Lake in the county of Jackson on June 24, 1921. Two other counts were added, but withdrawn, and need not be considered. He seeks review of his conviction on exceptions before sentence.

From the testimony it appears that certain officers, having suspicion that defendant was violating the prohibition law, went to the summer hotel conducted by him on Mack Island and registered as guests. Mr. Bresler was a Federal agent. Waltman was connected with the food and drug department of the State. They were accompanied by relatives of Waltman. They had provided themselves with several small bottles of whisky. They sought to gain defendant’s confidence by drinking in his presence and in the presence of a man in his employ. One of them intentionally dropped a small bottle from his pocket on the floor of the porch of the hotel on which they were sitting. The second day they were there Bresler testified he asked defendant for liquor and defendant expressed a willingness to sell him a quart for $17. Bresler asked defendant to bring it to his room, to which he and Waltman then went. Defendant soon after appeared with a bottle of old American whisky. He was handed a $20 bill, went out and soon after returned with the change.

The defendant was called as a witness in his own behalf. In his testimony, as set forth in narrative form, appears the following:

“Bresler says to McIntyre ‘Any chance of getting any liquor around here?’ McIntyre kind of hesitated, but thought they were pretty good fellows and said ‘Well, I have got two or three bottles of pretty good stuff. I am not crazy about disposing of it, but if you want to pay the price for it I will let you have one of the bottles.’ Bresler asked him what the price would be and he said $17, and Bresler says ‘All right, go and get it.’ McIntyre had two or three bottles in his room and. he went upstairs and got one of them which was old American whisky; that he brought it down in a newspaper and took it into the room where Bresler and Waltman was; that Waltman was slightly under the influence of liquor, that he swooned over on the bed and fell back asleep like and that Bresler had to kick him on the foot to kind of revive him; and Bresler asked Waltman if he wanted to get in on this. He said yes, and Bresler gave McIntyre $20 and McIntyre later gave him back the change. But just before this, McIntyre said to Bresler and Waltman: ‘Now, this bottle shows evidence of being tampered with, but it has not been; it hasn’t been out of my presence since I have had it some time, but it is probably too hot where I had it in my room. Take a drink of it and see if it is all right. I would not want you to pay for it, if you didn’t think it was all right.’ That they each had a drink out of this bottle, that is, the two officers did but was feeling kind of good; had two or three drinks before that, referring to the drinks out of other bottles before, so he took a drink out of the bottle just to please them. McIntyre was asked why he furnished Bresler this quart of liquor and his answer was T presume it was the way they used me; they had plenty of liquor and gave me all I wanted of it, and I was feeling pretty good.’ He said he did not have the liquor there for sale; that he told them so at the time and that was the reason he put the price on it of $17, that is, that he did not care to let it go; that they told him they would have to leave, would have to break up there if they did not get some more liquor. * * * He admitted that he knew the price of whisky and that he was not so drunk but what he knew that and that he knew enough to make the change of the money and that he was sane and conscious and knew it was a violation of the law, except he says he did not know it in fact right then, just what he was doing. * * * • McIntyre swore that he supposed he was, violating the law when he sold the whisky to Bresler and Waltman and knew that it wasn’t right, but he didn’t know in fact right then just what he was doing, that they, found some whisky in his hotel afterwards.”

In view of this admission on the part of the defendant, the trial court was fully justified in instructing the jury that it was their duty to convict him. They retired and promptly did so.

Defendant’s counsel urges that the testimony of the people’s witnesses should have been “stricken from the case for the reason that officers have no right to decoy with people or connive with people for the violation of the law.” He calls attention to the decisions of this court in Saunders v. People, 38 Mich. 218; People v. McCord, 76 Mich. 200, and People v. Pinkerton, 79 Mich. 110. In those cases the court in no uncertain terms characterized the acts of officers in conniving with or persuading people to commit crimes and then prosecuting them therefor. The record in this case presents no such facts. It is true that the officers sought to gain the confidence of the defendant and to satisfy him that it would be all right to sell them the whisky, but their acts did not constitute an unlawful inducement. The rule is well stated in People v. Liphardt, 105 Mich. 80, 83:

“We know of no case that holds that one who has committed a criminal act should be acquitted because induced to do so by another. It is merely when the criminality of the act is shown to be absent by the fact of the inducement that such proof justifies acquittal.”

See, also, People v. Everts, 112 Mich. 194, and cases cited; People v. Lalonde, 171 Mich. 286.

The exceptions are overruled. The trial court may proceed to judgment on the verdict.

Fellows, C. J., and McDonald, Bird, Moore, and Steere, JJ., concurred. Wiest and Clark, JJ., concurred in the result.