Lead Opinion
Chаrles Whittington was tried in the circuit court before a jury on the charge of selling intoxicating liquors in violation of the statute. The jury returned a verdict of guilty, and fixed Ms punishment at one year in the State Penitentiary. The defendant lias duly prosecuted an appeal to tMs court.
The conviction was secured on the testimony of H. B. Patterson, a deputy sheriff. According’ to his testimony, a taxicab driver, named McClung, purchased some whiskey from Charles Whittington in the city of Port Smith, Sebastian County, Ark., on the night of March 4, 1923. Patterson was present and saw the whole transaсtion. Patterson and McClung drove down on Ninth Street to where Whittington was. McClung asked Whittington if he had any whiskey, and Whittington replied “No.” McClung asked him if he could get him some, and Whit-tington said “Yes.” Whittington asked McClung who was in the car with him. McClung replied “Look at him, he is all right.” He told the negro that he was rooming аt the Goldman Hotel, and he looked at him and said, “He is all right.” He then asked McClung how much whiskey he wanted, and McClung told him. In fifteen or twenty minutes the negro returned with the whiskey, and said it was worth $6. McClung paid the defendant for the whiskey and received it from the defendant.
The deputy sheriff had been infоrmed that whiskey was being sold in the neighborhood in question, and he procured McClung to go down there and buy the whiskey in order to catch the person or persons who were selling it. The defendant admitted that he went and got the whiskey for McClung and delivered it to him, but says that he was arrestеd by the officer before he was paid by McClung for the whiskey. He denied that he was engaged in the business of selling intoxicating liquors, and said that he purchased the liquor from another negro solely as an accommodation to McClung. and that he had no interest whatever in the sale of the whiskey. He had never bought any whiskey from the negro before. He admitted that, a few days before, the negro who had sold him the whiskey in question for McClung told Mm that he was engaged in the business of selling intoxicating liquors. •
It is urged as a defense to the prosecution that the liquor was purchased by McClung for the deputy sheriff for the very purpose of having the defendant prosecuted for its sale, and that the court erred in not instructing the jury, at the request of the defendant, that, if the liquor was procured for the purpose of supporting the prosecution under the circumstances detailed by the deputy sheriff, the defendant was entrapped into making the sale, and was not guilty of a violation of the statute.
There has been much discussion as to the relation of detectives to crime and the effect of officers hiring thеm to induce or solicit the 'commission of a crime. There is a clear distinction between inducing a person to do an unlawful act for the purpose of prosecuting him, where the consent of the prosecuting witness is a necessary element of the offensе, and catching the' offender in the execution of a criminal design of his own conception.
In certain crimes relating to person or1 property, consent is a necessary element of the offense, and, where the accused is lured into the commission of such a crime for the very purpose of prosecuting him therefor, there are well considered cases holding that no conviction may be had. Prosecutions under the liquor laws do not fall within this class of cases. The sale of intoxicating linuor contrary to the statutе depends, after all, upon the voluntary act of the person selling the liquor. The fact that an officer of the law procured a detective or other person to purchase the liquor for the purpose of convicting the defendant can make nо difference, since an officer cannot, by consenting to the sale, justify the illegal act of selling on the part of the defendant, any more than could the consent of any private person justify the sale.
The mode adopted by the officer in this ¡case to bring to light the fact that the defendant was selling intoxicating liquors had no necessary connection with his violation of the law. The defendant exercised his own volition in the matter, independent of all outside influence or control.
In a case note to 18 A. L. R, at p. 162, the defense of entrapment in a prosecution for selling intoxicating liquors is discussed, and it is said that the great 'Weight of authority supports the view that a person making an unlawful sale of intoxicating liquors is not excused from criminality by the fact that the sale is. induced for the purpose of prosecuting the seller. Many eases are cited from the various courts of last resort and from the Circuit Court of Appeals of the United States, and most of them sustain the annotator. Goldstein v. United States,
Our own decisions bеaring on the question are in harmony with the authorities just cited.
In Springer v. State,
Again, in McNeil v. State,
Of course the testimony, while admissible, is to bе weighed by the jury in the light of the facts in the same manner as other facts or circumstances which might affect the credibility of the witnesses. Therefore the court did not err in refusing to submit to the jury the defense of entrapment as requested by the defendant.
It is next contended that the court erred in refusing to give instruction No. 4, requested by the defendant, and in this contention we think counsel is correct. The instruction is as follows:
“If you find from the evidence that the defendant was acting as the agent of the .buyer and not the seller, then you should find the defendant not guilty. ’ ’
As we have already seen, the crime of selling intoxicating liquors is now a felony, and for that reason it is error to direct a verdict of guilty against the defendant. Snead, v. State,
Again, in Ellis v. State,
The court did not submit the theory of the defendant in any instruction given by it. Consequently it was error to refuse to give the instruction requested by the defendant. The defendant testified positively that he had not been in any manner interested in the sale of intoxicating liquors, and only procured the whiskey in question for McClung as an accommodation to him. The mеre fact that the negro from whom the defendant says he got the whiskey in question had told him a few days before that he was engaged in selling whiskey did not, as a matter of law, make the defendant bis agent and deprive Mm of Ms defense that he, in good faith, acted for the buyer in buying the whiskey, аnd had no interest whatever in the sale of it.
For the error in refusing to give instruction No. 4 as requested by the defendant, the judgment must be reversed, and the cause will be remanded for a new trial.
Dissenting Opinion
(dissenting). I am unable to agree with the conclusion reached by the majority in this case, for thе reason that it appears to me in direct conflict with several other decision of the court on this subject, which should either be followed or overruled. I refer particularly to the case of Bobo v. State,
The Bobo case has been followed by this court in sevеral decisions rendered since that time. Williams v. State,
The facts in the present case, as correctly set out in the opinion of the majority, make it identical in alf essential particulars, so far as concerns the question of error in the trial below, with the Bobo сase. Appellant admits, in other words, that he procured liquor for the State’s witnesses at their request, that he obtained it from a certain negro, who, a few days before, had told him that he was engaged in the business of selling intoxicating liquors, and he admits that he did not disclose the name or identity of the seller to the persons for whom he obtained the liquor. He denied that he actually delivered the liquor to the State’s witnesses, but this issue was settled by the verdict of the jury against him, and that question has nothing to do with the correctness of appellant’s refused instruction, by which it was sought to submit the question of agency. When the Bobo case was decided, the offense of selling liquor without a license was a misdemeanor, and the court had the power to direct a verdict against the accused, which would be improper now, beсause of the 'fact that selling liquor is a felony now. But that difference in the cases has no hearing here, for the reason that the court did not give a directed verdict; it merely refused to give this instruction on the question of agency, for the reason that the undisputed testimony showed that appellant, if he delivered the liquor at all to the State’s witnesses, obtained the liquor, according to his own confession, under circumstances which, under the doctrine of the Bobo case, made him a participant in the crime.
It is a familiar rule in our decisions that in felony oases, as well as in all other trials, the instructions of the court should be confined to such issues that find some support in the testimony, and that abstract instructions should not be given. We have frequently decided that, even in a homicide case, it is not error to refusе to give ■an instruction upon a degree of the crime about which there is no testimony. The court submitted all of the issues in this case upon which there was any testimony. The instructions were even more favorable to appellant than he was entitled, to, for an instruction wаs given which told the jury that “where the intermediary between the purchaser and seller is a necessary factor, without whose assistance the sale of liquor could not have been consummated, he is interested in the sale in the sense of the law.” Williams v. State, supra; Metcalf v. State, supra.
The cases cited by the majority db not, I think, sustain them. In the Ellis case the accused did not admit, and it was not shown, that he knew beforehand where he could get the liquor or who he would get it from; he merely testified that he received the money from Beard to purсhase liquor for the latter, and that, when he'went out in search of it, he found a man who sold it to him, and that he bought it and took it back to Beard. He testified that he had never seen the person he bought the liquor from before that transaction. According to the testimony of the аccused in that case, ■there was no element involved of his own participation in the sale, and lie was therefore entitled to go to the jury on the question of agency. In the Sneed case it was held to be error to give a directed verdict, and that the instruction of the court was, in effect, peremptory.
I dissent therefore from the conclusion of the majority, and am authorized to say that Mr. Justice Humphbexs joins me in this opinion. ®