State v. Abley

Oct 3, 1899
Reporters:
,
Before:
Waterman
Waterman, J.

The building entered was owned by the firm of Schaeffer & Rеynolds. No question is made but that defendant broke and entered the store, and took goods therefrom; but it is claimed that he cannot рroperly be convicted of the offense charged, because the entry was made 1 with the assent of the owners or their agеnt. The facts upon which this claim is based are as follows: One Clock was marshal of the town in which the building was located. Prior to the commission of the crime, Clock (as he claims, for detective purposes) had been counseling and advising with defendant, not only in relatiоn to this particular offense, but also as to the two breaking and entering other buildings. So zealous was the officer in this questionable line оf diity and so anxious wps he to impress *63defendant with the belief that lie was earnest in bis criminal intentions and would keep faith in the matters plоtted, . that Clock alone on one occasion broke and entered another store building, belonging to one Bryan, with a key furnished by defendant, and took from it some goods. Of course, he. • ■ claims that this was done merely to lead defendant on. Clock testifies that the ‍‌‌‌​‌‌‌​​​​‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌‌​​‌​‌‌​​‍mayor of the town had previous information, from him of defendant’s intention to enter the Bryan store. The mayor, who was a witness, does not testify on this point; but, however that fact may be, Clock admits that Bryan, the owner, had no such information, and-.that the entry was effected without his knowledge or consent. One Will Bey-, nolds, a clerk in the employ of Schaeffer & Keynolds, had a key to the building in question in this. case. Shortly befоre the commission of the offense charged, Clock borrowed this key to get an’ impression from which defendant could make another key which would open the door, and such a key was afterwards made by defendant. At this time Clock told Beynolds, the clerk, the use which hе wished to make of the borrowed key, and also of defendant’s criminal purpose. The breaking and entering were done in the nighttime. During the day Clock had warned several citizens of the contemplated crime,- — among others, Schaeffer, a member of the firm which оwned the store. He told Schaeffer that defendant had a key to the store, and would enter it that night. He did not, however, tell him where or how the key ’ had been obtained. The persons so warned were requested to be on guard and assist in defendant’s arrest after the offense was completed. This plan was carried out. Schaeffer and the others watched. Clock and defendant came upon the scene about midnight. Defendant opened the door and entered the store, Clock following. As they came out with the proрerty taken, defendant was arrested.

One who has committed a criminal act is not entitled to(, be shielded from its consequences merely because lie was! *64induced‘to “do so’by another. ‘ll there‘is anything’in‘‘the 2 “defense here, if mnst“be‘because’the entry wWassented ’to/by Schaeffer. “!Biííi,‘tlie“evidenoé,’téncls“st.rbhg‘ly,,to ‍‌‌‌​‌‌‌​​​​‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌‌​​‌​‌‌​​‍show” tlíkt i Séh‘áeffеr, Sióugh‘‘nd{‘‘oÍ>íecíingj did” not-personally assent./“One‘who knows of a erime ‘contempiated against him may remain silent and‘permit matters “to gо’ on” for the purposed!? apprehending‘the‘ciuminal‘,/without being held to‘have assented” to the act.” People v. Liphardt, 105 Mich. 80 (62 N. W. Rep. 1022); State v. Adams, 115 N. C. 775 (20 S. E. Rep. 722); State v. Sneff, 22 Neb. 481 (35 N. W. Rep. 220); Thompson v. State, 18 Ind. 386; State v. Jansen, 22 Kan. 498. The question of the owner’s‘‘‘‘personal’ assent was left to thé fúívy, and, we think’ under instr uétións that fully and accurately stated‘the law. /Rut certain instruct tipns were asked bydefendant and rеfused by/ the court/ the 3 was owner upon the acts “of the clerk,’ Reynolds/’ The ev> derice does hot show‘oh tifo part-bf“the”‘memfórs’ of the firm any‘knbMedge/of ./Reynolds/’ conduct.” Of ’course,, if the clerk, with ‘criminal intent,/aided in‘any way‘in the entry of this .building,’ he‘would be a‘party to the crime. But t^at is not yhat. is claimed by defendántV ‍‌‌‌​‌‌‌​​​​‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌‌​​‌​‌‌​​‍Tfé contends tha.t if ,rfhe plérk,. though without сriminal intent,’ assented’ to the entry, such assent will he imputed’ to the master. ’ Some tex$ writers )ay down the. rule in terms broad enough to give support to this contention, and the following cases are ‘cited ■O >M ‘ M I f tM*f í|‘lí»‘// I < 1 M *» I* // < >• ‘ ■ t I • I-J‘f i |{ I I I I 1 (l f,kí*il J * 1 || I/1 \|.J* by counsel as sustaining‘.it: , Reg. v. Johnson, 41 E. C. L. 123; People v. Collins, 53 Cal. 185; Saunders v. People, 38 Mich: 218; People v. McCord, 76 Mich. 200 (42 N. W. Rep. 1106); Allen v. State 40 Ala. 344. In the (California w>»‘ ‘O‘M ) <U * VWJ’ <’t\ %ttr- ■’ M * i, J ” itMíT‘A rimin‘J case, r the agent oí the owner, who was pretending to take pаrt in the burglary,’ alone. eriteréd the building,. ‘and the decision was founded on. this‘fact.’ . The/other’cases ‘are/ each based upon one oi two states ox tact: Jtither the servant had custody of the building and a fight‘dd’ open’if’ at the’time he did, or at the time he assented thereto, or the owner was *65aware of the part the servant was taking, and acquiesced therein. Neither of these conditions prevаiled in the case at bar. It does not appear that Reynolds had charge of the building, or had any right to admit persons therein, aftеr it was closed for the night; and, as we have said, his conduct in the transaction with Clock was unknown to the owners. We do not think the clerk’s conduct can be used as a shield for defendant. 1 Bishop Criminal Law (5th ed.), section 262; State v. Jansen, 22 Kan. 498. The instructions were rightly refused.

Clock, when on the witness stand, stated on cross-examinatiоn that he had owed defendant ‍‌‌‌​‌‌‌​​​​‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌‌​​‌​‌‌​​‍money. He was then asked whether defendant had been trying to collect it, and 4 also whether the indebtedness still remained. The court sustained objections to these questions. Questions were also ruled o-ut which called for statements made by the witness to defendant as to his (witness’) former life, and further sought to elicit an admission from witness 5 that he had at some previous time committed a crime. This last matter was clearly inadmissible. As to the other testimony sought, the court might properly, in the exercise of its discretion, hаve received it Clock’s conduct in this whole transaction was so reprehensible and 6 suspicious in character that a wide lаtitude of crossr examination might have been allowed. But we are not able to say the trial court’s discretion was abused. The defendant could not have been prejudiced. The evidence ‍‌‌‌​‌‌‌​​​​‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌​‌​​​‌‌​​‌​‌‌​​‍sought was of a collateral nature. So much of it as had a bearing on Clock’s motive or feeling towards defendant was made immaterial by the latter’s admitted conduct in the transaction of which cоmplaint is made.

We cannot leave this case without again, and in more emphatic terms, expressing our disapproval of the conduct of Clock, who> if he did not suggest, at least encouraged, the commission of the offense by defendant, We are inclined tо *66doubt whether defendant, if left to himself, would have perpetrated the crime of which he has been convicted. Clock stimulated him with аdvice, aided him by acts, and, through unremitting effort, spurred him on to his undoing. This conduct was outrageous, if, indeed, it was not criminal, and it is aggravated, rather than excused, by the fact that Clock was a peace officer. Frail human nature is prone enough to crime; it should not be purposely tempted; and in this case, it was urged to act. Defendant was sentenced to imprisonment in the penitentiary for a term of three years. In -view of the facts, we shall reduce the term to six months. With this modification, the judgment will be affirmed.