French v. State

• Decision Date: 05 March 1928
• Docket Number: 26745
• Citation: 115 So. 705,149 Miss. 684
• Court: Mississippi Supreme Court
• Parties: FRENCH v. STATE. [*]

115 So. 705

149 Miss. 684

FRENCH v. STATE. ^[*]

No. 26745

Supreme Court of Mississippi

March 5, 1928

Suggestion of Error Overruled March 19, 1928.

(En Banc.)

1. INTOXICATING LIQUORS. Sale of intoxicating liquor is violation of law, regardless of intent.

APPEAL from circuit court of Rankin county. HON. G. E. WILSON Judge.

A. R French was convicted of selling intoxicating liquor, and he appeals. Affirmed.

Judgment affirmed.

Broom & Gober, for appellant.

Appellant cites the following authority on inducement and entrapment as a defense: Saunders v. People, 38 Mich. 218, 16 C. J. 90; State v. Abley, 109 Iowa 61; Strait v. State, 77 Miss. 693; U. S. v. Yick, 240 F. 60; Woo Wai v. U.S. 223 F. 412; Taylor v. U.S. 193 F. 968; U. S. v. Jones, 80 F. 513; U. S. v. Healey, 202 F. 349; U. S. v. Adams, 59 F. 674; Willcox v. People, 17 Cal.App. 109; People v. Braisted, 15 Colo. 532; Ford v. Denver, 10 Colo. 500; Dalton v. State, 113 Ga. 1037; Cornelius on Search & Seizure, p. 163, sec. 39.

Rufus Creekmore, for the state.

In Brantley v. State, 107 Miss. 466, 65 So. 512, appellant was requested by a certain Mr. Sikes to purchase for him some whisky and received from him three dollars with which to make the purchase. The appellant then went to the deputy sheriff, reported the facts to him and was requested by the deputy to make the purchase, the deputy stating that he wanted to catch the seller of the liquor and that no harm would come to him by reason of making the purchase. The appellant purchased the whisky, and was then charged with acting as agent in the unlawful purchase of intoxicating liquor, and was tried and convicted on this charge. The court held that the conviction should be sustained because in order to provide the seller of the liquor with an opportunity of violating the law, he himself committed a crime distinct from and not included in the one she was induced to commit.

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. It is only where the accused is lured into an unlawful sale of liquor by government officials and is a mere passive instrument in their hands that the entrapment would bar a prosecution. Cornelius on Search and Seizure, sec. 39, p. 163. See, also, case note to Butts v. U.S. 18 A. L. R. 143, 273 F. 35; Blackmore on Prohibition (2 Ed.), sec. 75, p. 81; U. S. v. Papagoda, 288 F. 214.

OPINION

PACK, J.

Appellant was convicted in the circuit court of Rankin county of the unlawful sale of intoxicating liquor, and sentenced by the court to pay a fine of fifty dollars, and imprisonment for a form of ninety days.

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 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, 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, 77 Miss. 693, 27 So. 617. In that case the law office of Ethridge & McBeath, a firm of lawyers, had been often entered by some person, and the office boy was suspected as the culprit. Green Morton was requested by the lawyers to investigate the matter. Morton, under pretense that he had left a bundle in the office, procured the key thereto from Strait, who was carrying it in discharge of his duties for his master, entered the office followed by Strait, who was afterwards arrested and convicted of burglary. This court held that, since Morton entered the office under license of the owners, there was no burglary as to him, and, unless he (the principal) was guilty, Strait was not guilty of the crime. We do not think this authority supports appellant's position.

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 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, 13 N.D. 655, 102 N.W. 875, 69 L....