Ritter v. United States

• Decision Date: 05 November 1923
• Docket Number: 4004.
• Citation: 293 F. 187
• Parties: RITTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

293 F. 187

RITTER v. UNITED STATES.

No. 4004.

United States Court of Appeals, Ninth Circuit.

November 5, 1923

James T. Boyd, of Reno, Nev., for plaintiff in error.

George Springmeyer, U.S. Atty., and Charles A. Cantwell, Asst. U.S Atty., both of Reno, Nev.

Before GILBERT, ROSS, and RUDKIN, Circuit Judges.

RUDKIN Circuit Judge.

The information in this case charges the two defendants, Ritter and Church, with the possession and sale of intoxicating liquor in two counts. The defendant Church was acquitted and the defendant Ritter convicted as to each count. The latter has sued out a writ of error. At the commencement of the trial, the plaintiff in error objected to the introduction of any testimony on the ground that the information failed to state facts sufficient to constitute a public offense. The sufficiency of an indictment or information cannot be tested in this way. Wild v. United States (C.C.A.) 291 F 334. But the same objection was raised by motion in arrest. As the sentence imposed was imprisonment, and the record discloses no prior conviction, it is apparent that the sentence was imposed on the sale count. That count charges that the defendants 'did unlawfully, willfully, and knowingly sell intoxicating liquor containing one-half of 1 per cent., or more, of alcohol by volume, fit for beverage purposes,' and is clearly sufficient. Hensberg v United States (C.C.A.) 288 F. 370.

An objection to the following testimony was overruled: 'Mr Scott told me that Mr. Church sold the drinks, and Mr. Ritter brought in the bottle'-- and the ruling is assigned as error. It appears from the testimony that this statement was made within the presence and hearing of the plaintiff in error, and the testimony was therefore clearly competent. At the conclusion of the testimony the plaintiff in error requested an instruction on the question of entrapment, similar to the instruction approved by this court in Peterson v. United States, 255 F. 433, 166 C.C.A. 509. We there said:

'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, * * * the law will not authorize a verdict of guilty.' From that rule we have no desire to depart.

'Public policy forbids that officers sworn to enforce laws should seek to have them violated, and that those whose duty it is to detect criminals should create them. So that, when an officer induces a person, who has had no intention of committing a crime, to violate the law, courts will not lend their aid in punishing the person thus lured into crime.'

But if the intent and purpose to violate the law are present the mere fact that public officers...