State v. Johnson

• Decision Date: 05 April 1926
• Citation: 42 Idaho 381,246 P. 531
• Parties: STATE, Respondent, v. P. E. JOHNSON and THOMAS CASTLE, Appellants
• Court: Idaho Supreme Court

246 P. 531

42 Idaho 381

STATE, Respondent, v. P. E. JOHNSON and THOMAS CASTLE, Appellants

Supreme Court of Idaho

April 5, 1926

INFANTS-CONVICTION FOR SALE OF CIGARETTES TO MINOR-PURCHASE INDUCED BY SHERIFF.

1. Conviction for sale of cigarettes to minor under C. S., sec 8363, as amended by Laws 1921, chap. 185, will not be set aside as a matter of public policy because minor made purchases at direction of sheriff.

2. That sheriff caused minor to enter stores and offer to make purchase of cigarettes does not prevent sales from being criminal under C. S., sec. 8363, as amended by Laws 1921 chap. 185 3. C S., sec. 8363, as amended by Laws 1921, chap. 185, prohibits sale of cigarettes to minors.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.

Judgment of conviction of each defendant of the crime of sale of cigarettes to a minor. Affirmed.

Judgment affirmed. Petition for rehearing denied.

George Donart, for Appellants.

A person who is entrapped into the commission of a wrongful act without any criminal design on his part, and without any attempt to carry out a criminal purpose of his own conception, does not thereby become guilty of a crime. (State v. Mantis, 32 Idaho 724, 187 P. 268; United States v. Healy, 202 F. 349.)

The sale of cigarettes to all minors is not prohibited by the statutes of Idaho. Such sales are prohibited only to that class of minors enumerated in C. S., sec. 8363, as amended by section 2, chap. 185, Sess. Laws of 1921.

A. H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

"Entrapment into the commission of a crime is not a defense in the sense of a justification or excuse for an act which otherwise would be criminal, but it resolves itself into a question of whether the accused committed any crime." (State v. Mantis, 32 Idaho 724, 187 P. 268.)

When it appears that the person charged with the offense did himself everything necessary to make a complete offense against the law, the fact that he was entrapped into the commission thereof is immaterial. (People v. Collins, 53 Cal. 185; State v. Jansen, 22 Kan. 498; State v. Hayes, 105 Mo. 76, 24 Am. St. 360, 16 S.W. 514.)

In acts mala in se the intent governs. In acts mala prohibita the intent does not govern, and the only inquiry is, has the law been violated? (State v. Sheehan, 33 Idaho 103, 190 P. 71; State v. Sterrett, 35 Idaho 580, 207 P. 1071)

WM. E. LEE, J. Budge and Givens, JJ., concur. WILLIAM A. LEE, C. J., Mr. Justice Taylor, Dissenting.

OPINION

WM. E. LEE, J.

--Appellants were separately charged and convicted of selling cigarettes to a minor (C. S., sec. 8363, as amended 1921 Sess. Laws, chap. 185, p. 385). They contend that the evidence is insufficient to sustain the verdict, in that it appears that they were entrapped by the sheriff into making the alleged sales under the belief that the minor was an adult. The minor was six feet and one inch tall, weighed 175 pounds and was seventeen years old. He accompanied the sheriff from Payette to Fruitland and New Plymouth, where he entered the places of business of appellants and purchased from each of them a package of cigarettes, paying therefor money given him by the sheriff.

To support his contention that the conviction cannot be sustained, counsel cite State v. Mantis, 32 Idaho 724, 187 P. 268, and United States v. Healy, 202 F. 349. The Mantis case states what we believe to be the general rule relating to the law of entrapment, but it in nowise supports appellants. In that case a man was convicted "of attempting to induce a female to reside with him for immoral purposes," and it was necessary to prove an intent as well as an attempt. The "attempting" was all done by the female; and the evidence was clearly insufficient to sustain the conviction. The Healy case is against appellants, for the court said:

"If, however, the decoy is one whose appearance, or otherwise, conveys knowledge of his disability, or is sufficient to put the seller on inquiry, any sale made is voluntary, establishes guilt, and warrants conviction. For in such case the seller is either of guilty intent, or negligent ignorance or recklessness, which relieves the government's participation of any taint of fraudulent concealment or deceit."

In an instruction, to which no objection was made, the court told the jury, "that if you find from the evidence that the witness David J. Krost was a minor, as alleged, at the time of any alleged sale of cigarettes, but that any such sale of cigarettes to said David J. Krost was made by the defendant making the sale in good faith, and that such defendant had reason to believe and did believe David J. Krost to be of age, it is a good defense for any such defendant.

"Whether in this case any defendant did sell to a minor, and whether any defendant took reasonable care to find out whether said David J. Krost was a minor, and whether any defendant, in good faith, believed said Krost to be over the age of twenty-one years, are questions of fact to be determined by the jury in the case."

By its verdict, the jury said that the sales of cigarettes were made to a minor; that they were not made in good faith; and that appellants had no reason to believe that the minor was an adult. Does the fact that the boy made the purchases at the direction of the sheriff require that the conviction be set aside as a matter of public policy? We think not. The purchases were neither induced nor procured by the sheriff. Appellants were not lured into the commission of the offense. They were merely furnished an opportunity to either violate the law or decline to do so. There was no persuasion to sell, nor misrepresentation as to the boy's age. The boy went into the stores and asked to buy cigarettes. It is true that the particular sales would not have been made but for the act of the sheriff, but they were made in the usual course of business, freely and voluntarily. Appellants were willing offenders, willing to make the sales to one who, the jury said, they had no reason to believe was an adult. The appellants, and each of them, did everything necessary to constitute the offense. The fact that the sheriff caused the boy to enter the stores and offer to make the purchases does not prevent the sales from being criminal, nor necessitate setting aside the convictions. (State v. Mantis, supra; United States v. Healy, supra; Salt Lake City v. Robinson, 40 Utah 448, 125 P. 657 (which is readily distinguishable from the more recent Utah case of State v. McCornish, 59 Utah 58, 201 P. 637). See, also, note in 18 A. L. R., commencing on page 146.

As to appellants' second contention we hold that the statute prohibits the sale of cigarettes to minors and that the minor to whom these sales were made is within the class contemplated by the statute.

Judgment affirmed.

Budge and Givens, JJ., concur.

Petition for rehearing denied.

DISSENT BY: WILLIAM A. LEE

WILLIAM A. LEE, C. J., Dissenting.--

The following opinion was first prepared by myself recommending a reversal of the judgment of conviction for the reasons stated. A majority of the court did not approve the same and two separate opinions affirming the judgment, but for different reasons, were written. One of these opinions has now been withdrawn and I file my original opinion as a dissent with such modifications as make it applicable to the majority opinion as it now stands.

Appellants P. E. Johnson and Thomas Castle, were severally prosecuted under C. S., sec. 8363, as amended Sess. L. 1921, c. 185, p. 386, charged with having "wilfully and unlawfully" sold to one David J. Krost, cigarettes, he being a minor under twenty-one years of age, and after trial and conviction they appealed to this court. By agreement, the trial of the two cases, and that of a third party who was acquitted, were consolidated and tried together and the appeals are taken on the same record.

The state's evidence, by which it secured these convictions, shows that appellants were merchants and severally operated stores, Johnson at Fruitland and Castle at New Plymouth, towns in the interior of the county, some five and ten miles respectively from Payette, the county seat; that appellants were induced to make these sales in the following manner: The sheriff procured one David J. Krost, who resides at Payette and claims to be under twenty-one years of age, to accompany him first to Fruitland where the officer furnished him with the money and instructed him to go into the store of appellant Johnson and purchase a package of cigarettes, while he, the sheriff, remained outside where he could observe the transaction, and after making such purchase to return and deliver the cigarettes with which instruction the witness complied. From there the sheriff took the witness to New Plymouth where in like manner a purchase was made at the store of appellant Castle, and also from a clerk at the store of the third merchant who was acquitted. This witness Krost weighs 175 pounds, is more than six feet tall, and has the manner and general appearance of an adult. He had never lived at New Plymouth and had not lived at Fruitvale since he was a child about ten years of age, and was not known to either of appellants. Both the officer and the witness testified that he was taken to each of these places for the sole purpose of purchasing a package of cigarettes from each of these merchants, and while neither of them have any independent recollection of having made such sales, they do not deny that they may have done so.

The whole transaction was cleverly designed by the officer and witness for the sole purpose of entrapping these merchants into making a sale of cigarettes to...