Opinion
No. 5246.
November 7, 1928.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
From judgment of conviction of the sale of intoxicating liquor, defendant appeals. Affirmed.
C.M. Jeffery, for Appellant.
Where the criminal intent originates in the mind of the entrapping person, and the accused is lured into the commission of the offense charged in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent. ( United States v. Healy, 202 Fed. 349; Butts v. United States, 273 Fed. 35, 18 A.L.R. 143; Peterson v. United States, 255 Fed. 433, 166 C.C.A. 509; United States v. Echols, 253 Fed. 862; United States v. Pappagoda, 288 Fed. 214; Woo Wai v. United States, 223 Fed. 415, 137 C.C.A. 607.)
Where officers of the law have incited a person to commit the crime charged and lured him on with the purpose of arresting him in its commission, the law will not authorize a conviction. ( Peterson v. United States, supra; United States v. Echols, supra; Woo Wai v. United States, supra; Orsatti v. United States, 3 Fed. (2d) 778; People v. Harris, 80 Cal.App. 328, 251 P. 823.)
In a criminal prosecution, where the defense was that defendant was incited and induced to commit the offense by officers for the purpose of entrapment, the court should submit the question of inducement and enticement as one of fact, and it is error to refuse to so instruct. ( Peterson v. United States, supra; Capuano v. United States, 9 Fed. (2d) 41; People v. Harris, supra.)
Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.
In a liquor prosecution, a conviction had upon a sale of liquor induced merely for the purpose of prosecuting the seller and not for the purpose of causing an innocent man to commit a crime, is lawful and may be sustained. ( Goldstein v. United States, 256 Fed. 813, 168 C.C.A. 159; Fetters v. United States, 260 Fed. 142, 171 C.C.A. 178; Ramsey v. United States, 268 Fed. 825; Saucedo v. United States, 268 Fed. 830; Farley v. United States, 269 Fed. 721; Borck v. State (Ala.), 39 So. 580; Swoope v. State, 12 Ala. App. 297, 68 So. 562; Strother v. State, 15 Ala. App. 106, 72 So. 566; Duff v. State, 19 Ariz. 361, 171 P. 133; People v. Barkdoll, 36 Cal.App. 25, 171 P. 440; Simmons v. People, 70 Colo. 262, 199 Pac. 416; Gordon v. State, 7 Ga. App. 691, 67 S.E. 893; Evanston v. Myers, 172 Ill. 266, 50 N.E. 204; State v. Lee, 177 Iowa, 316, 158 N.W. 667; State v. Spiker, 88 Kan. 644, 129 P. 195; Commissioners v. Graves, 97 Mass. 114; People v. Murphy, 93 Mich. 41, 52 N.W. 1042; People v. Everts, 112 Mich. 194, 70 N.W. 430; People v. Rush, 113 Mich. 539, 71 N.W. 863; State v. Quinn, 94 Mo. App. 59, 67 S.W. 974, affirmed 170 Mo. 176, 70 S.W. 1117; State v. Lucas, 94 Mo. App. 117, 67 S.W. 971; State v. Richie (Mo.), 180 S.W. 2; State v. Feldman, 150 Mo. App. 120, 129 S.W. 998; State v. O'Brien, 35 Mont. 482, 90 P. 514; Excise Commrs. v. Backus, 10 Ann. Cas. 1006, 29 How. Pr. (N.Y.) 33.
Appellant was convicted of a sale of intoxicating liquor to two agents of the sheriff. The only point on which the appeal is predicated is the failure to give a requested instruction on entrapment. There was no error. The evidence showed no more than that appellant was given an opportunity to either violate the law or to refuse to do so, which does not constitute entrapment. ( State v. Johnson, 42 Idaho 381, 246 P. 531; Simmons v. People, 7 Colo. 262, 199 P. 416; Ex parte Moore, 70 Cal.App. 483, 233 P. 805; 16 C. J., p. 88, sec. 57.) There being no evidence of entrapment, there was no necessity for the proposed instruction. ( State v. White, 33 Idaho 697, 197 Pac. 824.)
Judgment affirmed.
Budge, Givens and Taylor, JJ., and Hartson, D.J., concur.