Whittington v. State

• Decision Date: 01 October 1923
• Docket Number: 143
• Citation: 254 S.W. 532,160 Ark. 257
• Parties: WHITTINGTON v. STATE
• Court: Arkansas Supreme Court

254 S.W. 532

160 Ark. 257

WHITTINGTON v. STATE

No. 143

Supreme Court of Arkansas

October 1, 1923

Appeal from Sebastian Circuit Court, Fort Smith District; John E Tatum, Judge; reversed.

Judgment reversed, and cause remanded.

T S. Osborne, for appellant.

The evidence in this case clearly shows that the design and purpose originated and was suggested by the officer, with the aid of Jack McClung, to lay a "trap" and "inveigle somebody into selling liquor." A defendant cannot be convicted of a crime when he was incited and induced to commit it by a government officer for his entrapment. 253 F. 863; 240 F. 60; 153 C. C. A. 96; 223 F 412; 137 C. C. A. 604; 12 Cyc. 160.

J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.

The Federal cases cited by appellant are not applicable, and should not be considered. It is a violation of the law for any one to sell or be interested in the sale of intoxicating liquors. C. & M. Digest, § 6160. The sale is the only requisite to constitute the crime under the statute. 149 Ark. 643; 149 Ark. 648.

HART, J. MCCULLOCH, C. J. dissenting. Mr. Justice HUMPHREYS joins in this opinion.

OPINION

HART, J.

Charles Whittington was tried in the circuit court before a jury on the charge of selling intoxicating liquors in violation of the statute. The jury returned a verdict of guilty, and fixed his punishment at one year in the State Penitentiary. The defendant has duly prosecuted an appeal to this court.

The conviction was secured on the testimony of H. B. Patterson, a deputy sheriff. According to his testimony, a taxicab driver, named McClung, purchased some whiskey from Charles Whittington in the city of Fort Smith, Sebastian County, Ark., on the night of March 4, 1923. Patterson was present and saw the whole transaction. Patterson and McClung drove down on Ninth Street to where Whittington was. McClung asked Whittington if he had any whiskey, and Whittington replied "No." McClung asked him if he could get him some, and Whittington said "Yes." Whittington asked McClung who was in the car with him. McClung replied "Look at him, he is all right." He told the negro that he was rooming at the Goldman Hotel, and he looked at him and said, "He is all right." He then asked McClung how much whiskey he wanted, and McClung told him. In fifteen or twenty minutes the negro returned with the whiskey, and said it was worth $ 6. McClung paid the defendant for the whiskey and received it from the defendant.

The deputy sheriff had been informed that whiskey was being sold in the neighborhood in question, and he procured McClung to go down there and buy the whiskey in order to catch the person or persons who were selling it. The defendant admitted that he went and got the whiskey for McClung and delivered it to him, but says that he was arrested by the officer before he was paid by McClung for the whiskey. He denied that he was engaged in the business of selling intoxicating liquors, and said that he purchased the liquor from another negro solely as accommodation to McClung, and that he had no interest whatever in the sale of the whiskey. He had never bought any whiskey from the negro before. He admitted that, a few days before, the negro who had sold him the whiskey in question for McClung told him that he was engaged in the business of selling intoxicating liquors.

It is urged as a defense to the prosecution that the liquor was purchased by McClung for the deputy sheriff for the very purpose of having the defendant prosecuted for its sale, and that the court erred in not instructing the jury, at the request of the defendant, that, if the liquor was procured for the purpose of supporting the prosecution under the circumstances detailed by the deputy sheriff, the defendant was entrapped into making the sale, and was not guilty of a violation of the statute.

There has been much discussion as to the relation of detectives to crime and the effect of officers hiring them to induce or solicit the commission of a crime. There is a clear distinction between inducing a person to do an unlawful act for the purpose of prosecuting him, where the consent of the prosecuting witness is a necessary element of the offense, and catching the offender in the execution of a criminal design of his own conception.

In certain crimes relating to person or property, consent is a necessary element of the offense, and, where the accused is lured into the commission of such a crime for the very purpose of prosecuting him therefor, there are well considered cases holding that no conviction may be had. Prosecutions under the liquor laws do not fall within this class of cases. The sale of intoxicating liquor contrary to the statute depends, after all, upon the voluntary act of the person selling the liquor. The fact that an officer of the law procured a detective or other person to purchase the liquor for the purpose of convicting the defendant can make no difference, since an officer cannot, by consenting to the sale, justify the illegal act of selling on the part of the defendant, any more than could the consent of any private person justify the sale.

The mode adopted by the officer in this case to bring to light the fact that the defendant was selling intoxicating liquors had no necessary connection with his violation of the law. The defendant exercised his own volition in the matter, independent of all outside influence or control.

In a case note to 18 A. L. R, at p. 162, the defense of entrapment in a prosecution for selling intoxicating liquors is discussed, and it is said that the great weight of authority supports the view that a person making an unlawful sale of intoxicating liquors is not excused from criminality by the fact that the sale is induced for the purpose of prosecuting the seller. Many cases are cited from the various courts of last resort and from the Circuit Court of Appeals of the United States, and most of them sustain the annotator. Goldstein v. United States, 256 F. 813; Fetters v. United States, 260 F. 142, certiorari denied in 1919, 251 U.S. 554; Borck v. State, (Ala.) 39 So. 580; Duff v. State (Ariz.), 19 Ariz. 361, 171 P. 133; Evanston v. Meyers (Ill.), 172 Ill. 266, 50 N.E. 204; Com. v. Graves, 97 Mass. 114; People v. Everts (Mich.), 112 Mich. 194, 70 N.W. 430; State v. Gibbs (Minn.), 25 L.R.A. 449; State v. O'Brien (Mont.), 10 Ann. Cas. 1006; State v. Smith, (N. C.), 30 L.R.A. 946; DeGraff v. State, 2 Okla.Crim. 519, 103 P. 538; and Tripp v. Flanigan, 10 R.I. 128.

Our own decisions bearing on the question are in harmony with the authorities just cited.

In Springer v. State, 129 Ark. 106, 195 S.W. 376, the court held that, in a prosecution for the illegal sale of liquor, the purchaser is not an accomplice of the seller, and his testimony does not require corroboration to sustain a conviction.

Again, in McNeil v. State, 125 Ark. 47, 187 S.W. 1060, the court recognized that the offense of selling liquor had been raised to the grade of a felony, but said that it is still not an offense against the person or property of an individual, and that the gist of the offense consists in selling the liquor.

Of course the testimony, while admissible, is to be weighed by the jury in the light of the facts in the same manner as other facts or circumstances which might affect the credibility of the witnesses. Therefore the court did not err in refusing to submit to the jury the defense of entrapment as requested by the defendant.

It is next contended that the court erred in refusing to give instruction No. 4, requested by the defendant, and in this contention we think counsel is correct. The instruction is as follows:

"If you find from the evidence that the defendant was acting as the agent of the buyer and not the seller, then you should find the defendant not guilty."

As we have already seen, the crime of selling intoxicating liquors is now a felony, and for that reason it is error to direct a verdict of guilty against the defendant. Snead v. State, 134 Ark. 303, 203 S.W. 703. In that case it was held that, where the defendant was charged with the illegal sale of liquor, and there was evidence that he may have acted merely as a messenger for the buyer, his guilt or innocence is a question for the jury.

Again, in Ellis v. State, 133 Ark. 540, 202 S.W. 702, the court held that the test of criminal responsibility by an intermediary in the purchase and sale of liquor is whether the intermediary, in good faith, acted only for the buyer in the purchase of the liquor, or merely pretended to act for the buyer as a subterfuge to evade the law. The court said that the accused had a right to have an instruction covering his defense, and that it was reversible error to refuse to give such an instruction. The guilt or innocence of the defendant depends upon whether or not he, in good faith, acted only for McClung in the purchase of the whiskey or merely pretended to buy it for him as a subterfuge to evade the law.

The court did not submit the theory of the defendant in any instruction given by it. Consequently it was error to refuse to give the instruction requested by the defendant. The defendant testified positively that he had not been in any manner interested...