Peterson v. United States

• Decision Date: 03 February 1919
• Docket Number: 3185.
• Citation: 255 F. 433
• Parties: PETERSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

255 F. 433

PETERSON v. UNITED STATES.

No. 3185.

United States Court of Appeals, Ninth Circuit.

February 3, 1919

A. P Black, of San Francisco, Cal., for plaintiff in error.

Annette Abbott Adams, U.S. Atty., John W. Preston, Sp. Asst. Atty Gen., and James E. Colston, Sp. Asst. U.S. Atty., all of San Francisco, Cal.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge.

It is the settled rule in this circuit that where the officers of the law have incited a person to commit the crime charged and lured him on to its consummation with the purpose of arresting him in its commission, the law will not authorize a verdict of guilty. Taylor v. United States, 193 F 968, 113 C.C.A. 543; Woo Wai v. United States, 223 F. 412, 137 C.C.A. 604; Sam Yick et al. v. United States, 240 F. 60, 153 C.C.A. 96. The distinction between such a case and the well-recognized rule authorizing the use of decoy letters to detect a crime already committed was clearly pointed out by this court in the case of Holsman v. United States, 248 F. 193, 199, 200, 160 C.C.A. 271.

In the present case the plaintiff in error was charged by indictment with selling intoxicating liquor, namely, three bottles of beer, to a soldier named George Garis, who was a corporal, while in uniform, on the night of August 11, 1917. The case as made by the evidence showed, among other things, that the defendant owned a three-story house on the corner of Devisadero and Lombard streets, San Francisco, known as the Fairview Hotel, the lower floor of which was used as an ice cream parlor, in which were also sold tobacco, cigars, candy, soft drinks, and like articles. The two upper floors contained 20 rooms, 4 or 5 of which were used by her family, and the remainder rented to roomers and boarders as occasion offered.

There was certainly ample evidence given tending to show that the plaintiff in error willfully violated the law in selling to the soldier the intoxicating liquor, and that, complaints having been received by the officers of the law from different sources that she was engaged in such unlawful traffic, Garis and another soldier, as well as a police officer named Hand, all dressed in United States uniform, were sent to her place to investigate, and that during such investigation the defendant did in fact sell to Garis, for money, three bottles of beer; but the defendant testified in her own behalf, among other things, as follows:

'On the evening of August 11, 1917, two boys came in and asked me for a room, rang the bell, and I came out. I brought them upstairs in room 15, and they registered under a fictitious name. Corporal Garis said, 'Say, I want to see you about something.' He called me off to one side. He said, 'Can you slip me a couple of cold bottles of beer?' I says, 'No, sir; I cannot slip you any cold bottles of beer; and, furthermore, if you want any beer, you get out.' He says, 'You need not be afraid of me; I am not one of those fly cops, or a stool pigeon, or anything like that; you need not be afraid of me.' He says, 'I know you sell it; you might as well sell it to me.' I says, 'If you think you are going to get any beer from me, you are badly mistaken; I never sold a bottle of booze here.' He kept on nagging me, and I says, 'I have got to go downstairs and attend to business.' I should judge this was around 6 o'clock, because we generally eat about then, and I got called away from the supper table. I cannot say exactly the minute; I am always busy. After having refused beer to Corporal Garis, I went back to my supper table. It is on the second floor, and they are on the third floor. He came downstairs and called me out. He came out the door, and said he wanted to see me. He says, 'Where is that beer you promised me?' I said, 'What are you talking about? I do not sell any beer. What is the matter with you?' He says, 'Well, I have to have some beer; I never mind the price; I have paid as high as a dollar a quart on the Coast; I do not care what you charge me; I have to have it; I have been hiking all day.' I refused him. I said, 'I have no beer for soldiers; there's no use trying to get it; you might as well go back to your room.' I then went down to the candy place.

'There were two men registered in room 15. I only saw two that were present at that time. I am not acquainted with either Officer Hand, Corporal Garis, or Corporal Conley, and had never seen them before, that I remember. My recollection is that it was Corporal Garis who did the talking. The first request for beer was made when they rented the room. They called me off to one side. I should judge that it was 15 minutes after that that one of them came down to my living room on the second floor. That was Corporal Garis, as I remember. He knocked at the door; he called me off to one side, and he said, 'Where is that beer that you promised me?' I repeated the same thing. I said, 'There is no use wasting any time with you; I have got to go downstairs and attend to the ice cream parlor.' It was full of soldiers because it was pay day. When I went down to the ice cream parlor it must have been between a quarter to 7 and 7 o'clock. It is hard to tell exactly how long I stayed in the ice cream parlor, as I was very busy, and to tell you the truth I cannot tell the time exactly to a minute. Between 7 and 8 o'clock Officer Hand came down and says, 'I would like to have a little change; I would like to have that beer you promised to bring up.' He told me he was drilling six hours a day; that they were exhausted; he had to have the beer, it did not make no difference how much it cost. He just kept on nagging me. He says, 'You look pretty good-natured'-- I guess because I am good-natured and fat-- 'you might as well come across and give us some beer; we have to have it.' I said, 'I cannot sell any beer. What is the matter with you? Do you want to get me in trouble?' He said, 'Oh, that is all right; you can bring us up a couple of bottles.'

'Q. Did you say that in a very kindly tone, or did you say it positively? A. I was all excited. I slammed the door in front of their room the first time. I told them to leave me alone. First Garis came down twice; then Hand came down. They kept on nagging me for about three hours. They told me, ' Everybody sells it around the corner; you might as well give us a couple of bottles.' I went and gave them a couple of bottles. A soldier by the name of Rose came up the

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