State v. Driscoll

• Decision Date: 10 October 1925
• Docket Number: 26,376
• Citation: 119 Kan. 473,239 P. 1105
• Parties: THE STATE OF KANSAS, Appellee, v. JOHN DRISCOLL, Appellant
• Court: Kansas Supreme Court

239 P. 1105

119 Kan. 473

THE STATE OF KANSAS, Appellee, v. JOHN DRISCOLL, Appellant

No. 26,376

Supreme Court of Kansas

October 10, 1925

Decided July, 1925.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INTOXICATING LIQUORS--Evidence--Sale Through Solicitation of Officer. It is no defense to one who violates the prohibitory liquor law that an officer, in order to detect and prosecute him for the violation of the law, solicited him to obtain and sell intoxicating liquor to the officer and that his prosecution for the violations was based on the evidence so obtained.

W. B Crowther and F. C. Norton, of Salina, for the appellant.

Charles B. Griffith, attorney-general, C. A. Burnett, assistant attorney-general, and Bryan J. Hoffman, county attorney, for the appellee; H. N. Eller, of Salina, of counsel.

OPINION

JOHNSTON, C. J.:

John Driscoll was charged with five violations of the intoxicating-liquor law and convicted upon a count for the unlawful transportation of intoxicating liquors.

In his appeal he assigns as error the refusal of the court to give the following requested instruction:

"The jury are instructed that if they believe from the evidence that the witness Peterson, while acting as an officer of the law, induced the plaintiff to commit the crime charged, so that said witness was the moving cause of the commission of said crime, then you cannot convict the defendant for such crime."

In respect to the charge upon which the conviction is based, Peterson, who was aiding the sheriff in procuring evidence of violations of the prohibitory liquor law, testified that he and James Dippler went to the defendant's garage in Gypsum City and asked him to get liquor for them. At first defendant refused to do so, but finally did leave his garage and go somewhere, and later returned, bringing back in his automobile a quart of whisky, half of which he gave to Peterson for the price of $ 2, and kept the other half for himself. Defendant admitted that at Peterson's request he went out in his automobile and did get a quart of whisky, which he divided with Peterson and Dippler, and for which Peterson paid him $ 2. Defendant contends that he should escape punishment for this conceded violation of law because Peterson, a law-enforcing officer, asked him to obtain whisky. The fact that an officer seeking to discover violations of law asked for and obtained liquor from the defendant is not a defense to the charge upon which he was convicted. Evidently the officer had reasons to suspect that defendant was engaged in the illegal traffic, as there is some testimony in the record to the effect that defendant had sold a bottle of whisky prior to the time of the transaction in question, but there was no conviction for that sale.

It is sometimes quite difficult for an officer to procure evidence of the surreptitious sales of liquor or other violations of the prohibitory liquor laws, and one of the common methods of uncovering such violations is to have purchases made by one to whom the bootlegger is willing to risk a sale. The defendant inveighs against informers, detectives and secret agents, but of them it has been said:

"Detectives perform a valuable and necessary function in modern society. They are merely private citizens trained in the collection of evidence against criminals and in the study of the habits of criminals. Modern governments which are in earnest in seeing that their laws are enforced, that their coinage is preserved from counterfeiting, that their mails are free from molestation and robbery, make free use of detectives and secret-service men. The profession of detectives may be regulated by law, but no sound reason can be suggested why their testimony should be singled out as...