*1 1056
рloyees may working office, or others though who even proximity imagined ? might plac- close in which Circumstances ing negli- pathway chair in person of a would be actionable gence case, in оur opinion present circumstances. does such judgment Plaintiff’s accident in our unfortunate but not, negligence through may sympathy, due to not, of defendant and we unnecessary hold liable. -This conclusion dis- rendеrs it grounds cuss alleged. other judgment error the trial court is Henwood, GC., reversed. Davis and concur.
, foregoing opinion C., adopted PER- CURIAM: The Cooley, opinion Blair, J., court. White, concur; P. J., and J., Walker, concurs in result. W. 923. S. Appellant. Hicks, Fred State 33 Two, 1930. December
Division Benj. Mwrbury H. and W. A. *2 appellant. Brookshire for Shartel, Stratton Attorney-General, As-, and G. C. Weatherby, Attorney-General, sistant for respondent.
DAYIS, C. In an information filed in the St. Circuit Cоurt of County, charged, Francois April defendant was on 26, 1929, with whiskey. the sale of moonshine The verdict of found charged defendant information, and assessed punishment years’ imprisonment Judg- at two penitentiary. verdict, appealed. ment entered on the and defendant finding adduced in behalf of State evidence warrants the Roy Dugan Hogg that and M. L. United States Prohibition J. were 25, 1929, agents, April they guests St. Louis. On were stationed at Farmington. they On ac- day Hotel in that became the Ada quainted him the hotel. Later meeting at Hicks, with defendant agents they Kennedy place, while said day to and drove car, they had defendant remained in the They tried at or with which to two furnishing him Kennedy at .places get whiskey before three agents and place. The drank defendant of the whiskey on obtain- returning hotel, it. On ing accompanied defendant agеnts given room, by to their and them a drink of whiskey. The April 26, morning, 1929, nest between seven seven-thirty and Dugan defendant met in front of Dugan the hotel. M., testified: A. Mr. “I Hicks me pint asked could whiskey. said, He I him to Yes. told to our room at Ada Hоtel, and Room his automobile and drove down the street. twenty minutes, he In about returned. In the I meantime, had my partner, with gone my Ilogg, room and in about twenty minutes, Hicks came up Mr. and the door, knocked on and asked said, Yes, if he and he and took a pocket Agent of his handed it out and Hogg, Agent bottle and ‘ ‘ ’ ’ said, half, much ? Hogg Agent How and he said Dollar and a and dollar a half.” Hogg paid him a The contents of the bottlе Hogg morning April 26th, on the Hogg delivered both Dugan testified, was Dugan moonshine. went to defendant and asked pint. April On get him a 26th, asking him if he could before defend- whiskey, Dugan first him if any liquor, asked ant Hogg Dugan not. said that did said that he told bring up to have to show, defendant’s evidence tends employees Hotel, agents both were drunk Ada when were shown with they, difficulty, rooms and that climbed the stairs. dining drunk table were They drinking were at the whole at hotel. were
time acquainted Hogg testified he became with morning of 2'5th, They the Ada Hotel. on the him, stating entered into conversation with approached *4 asking get car was stolen and him how to in touch with that Hоgg was advised that in sheriff’s office was sheriff. saying house, twenty left returned in minutes, and and that court Hogg sheriff. gotten touch with the then seated him- in he had Dugan, Dugan appeared. Hogg and said to by defendant self night of car last pint whiskey of out when you that take “Did “No, Dugan out; I replied, didn’t take it I left parked it?” you good apiece a morning. drink could have this car so we it in the night last we’ll both drunk and have to have a we were know You Hogg straighten up said, on.” morning to “'Wouldn’t this drink pint find ear and if sheriff would that find that awful it be they needing They stated then that were both ear?” liquor in the get a man a they asked if could drink town. and a drink obtained, Dugan it, liquor paying for day was and Later on that town returned to and at hotel. they it as drank they April Hogg invited to his 25th, evening of On the Hogg sober, apparently with them. was he drank room, and 1Ó6Ó
Dugan half drunk. was On morning, April the next 26th, de- Dugan fendant saw bim Dugan front the hotel. beckoned approach. Defendant testified as follows:
“Q. just State to court and what the was, conversation Mr. Hicks. A. I went over to where he said, was and ‘My nearly friend, morning; I am déad my partner this sick, too, he bed,’ said, is in and he ‘We would like have liquor a morning. you get If can for us, it it biggest would be the friendship we ever had done to us.’
“Q. Tell what else was said or done. A. I said, ‘Well, I haven’t you got any.’ said, He ‘Can’t оut pint?’ us a “Q. else, Go on. Tell what anything, said, if said. A. I ‘Well, might you will, do that.’ ‘If said, biggest He it will be the partner My says accommodation we ever had done. he can’t gets you give until he a drink.’ ‘I said, He would buy change; with now but it I haven’t you if will ” room, my partner give you change our will for it.’ spend testified that did not tell him what for the He pint, liquor but that he obtained the for and took it to their Hogg, Hogg giving delivered it to a room and a dollar and liquor Dugan him, approached no when nor half. He had did Dugan; (defendant) Dugan mention first mentioned acting liquor, In he was for and that bought Dugan Dugan requested for would not have liquor. cross- get it him. had no interest On to examination, He rеquired order of the court the defendant was at the Hogg delivered to he obtained the to state that negro Murphy, Mrs. woman in the 26th from Tine paid dollar and a half for town, and that he her part of south taking money Hogg gave him. her identical it, paying and previously years pleaded five stated that about A fined. number liquor laws and was violation to a number known defendant testified witnesses good, veracity for truth reputation his years, guilty. notwithstanding plea of issue involving purported instructions offered I. Defendant the court entrapment, charges because error , „ A them. refused April 25, that on develop the State adduced facts requested that he approached the officers *5 show that the tends to whiskey. evidence Defendant’s pint of them a that, far he them as as informed and that request made the officers drink, would if wanted a dry and that town was knew, the also tends State’s evidence go to to where know not defendant, drove several to accompanied officers, the show
to places in St. County, Francois but wеre to unable obtain such at places any liquor. Finally they succeeded in a pint of Kennedy the place, the officers furnishing defendant a dollar and a half with which purchase to it. Subsequently that the officers and day, in the comrades, role of both on way the the to hotel and in room, the hotel consumed whiskey. the The State’s further evidence tends that, to show morning on the April 26th, Dugan again Officer approached defendant lobby of the Ada Hotel and asked if any he had Defend negative, ant answered in the asked him to a obtain and told take to it to the officers’ room. De Dugan, fendant’s evidence tends to show that the morning 26th, was seated on a bench in front of the hotel. When defendant appeared, Dugan D'ugan beckoned him. said: “My friend, I am morning; my sick, dead this nearly partner too, is in is bed. We would like to have morning. If n you us, biggest it can it would be the friendship we ever you will, biggest to us. If it will done be the accommodation My partner says us. we ever done can’t until he gets give you buy a drink. I would now, the it with you will change; haven’t the it my partner to our room give you change will for it.’1 * the officers, think is the Federal attempting
We it evident in liquor laws, of the apprehend violators were not criminal liquor, for, purchasing even if that could offense, in be said to laws, lacking, criminal under the Federal the intent was an offense crime. But such officers cannot purpose was to detect a crime then his conviction. person obtain to commit merely (N. S.) an If the officers furnished L. R. A. 951.] [30 crime, entrapment commit then opportunity for (2d) stated Sheeler, 7 S. W. We v. 340.] not involved. is [State 1169, l. 14 S. W. Decker, 1163, 321 Mo. c. v. rule in State originates 619-20, criminal -intent “Where the l. thus: c. accomplished, trial, and offense is in mind of the defendant furnished, or that is opportunity that an no defense constitutes crime, order in in commission of the' aids the accused an officer him. But prosecute where whiсh to upon obtain evidence éntrapper, mind originates intent criminal charged, offense commission into the lured accused general that no rule is the therefor, prosecute order act is criminality though had, may conviction (C. States United consent. question by any [Butts affected L. R. 35, 18 A. A.), 146.] 273 Fed. C. State, that of show, well as tends evidence Defendant’s De- officers. originated in the mind intent criminal that the officers further show however, tends to evidence, fendant’s *6 1062 only originated
not intent, the bnt de schemed whiskey by fendant obtain defendant’s confidence and playing upon sympathy, in that drank with him in the feigned role of comrades and necessity whiskеy illness and the quiet officers, their nerves. herein, under the facts induced agent if he was the of the vendor whiskey, of the do an unlawful through act. One may sympathetic appeals not induced to commit a crime prosecuted and then be and convicted committing v. (C. A.), United 19 States C. Fled. [Cain (2d) 475; 472, l. (C. c. Jarl v. 19 A.), United States C. Fed. (2d) 891; States, (2d) 568; Silk v. 16 United Fed. v. Cline United (C. A.), 20 (2d) States C. Fed. The court should have 494.] instructed the entrapment, relative to the instructions incorrect, given were drawn it should have instructions. correct Starr, 244 v. Mo. S. W. [State 862.] directing II. propriety The facts the relative to verdict close, opinion, entrapment and defendant are both as to an our agent the lack owner of of evidence defendant was the the agent whiskey, rather than officers. Cer originated criminal intent tainly, the officers presumption, a strong is also mind defendаnt. There and defendant tried to obtain of the facts that the officers in view succeeding Kennedy place, at the places several before morning, appeal the next made to defеndant sympathetic agent rather of the than purchasing officers may However, agent of the owner selling by being developed both State and capable of are facts remanding cause consequently we fully are more advised. State is as the retrial over erred in trial court complains that III. change of affidavits venue. The for a ruling application its facts, conclu must state witnesses disinterested regard the In this instance. they did as sions 7 S. W. Hancock, not err. court did trial [State 275.] trial remanded to the cause and the reversed judgment CC., concur. Cooley, Henwood, court. C., is adopted opinion Davis, foregoing CURIAM: The PER judges concur. All court. opinion