ment for burglary because the occupant of the building knows or suspects his intention and does not oppose his entry, or waits or procures officers to wait in the building for the purpose of apprehending him.39 And if a public officer solicits a bribe of his own accord, the fact that a trap is laid and the bribe paid in the presence of concealed witnesses does not render him any the less guilty, nor is such an entrapment contrary to public policy.40 The same rule has been applied in cases of train wrecking, robbery,42 obtaining 18 Pac. 425, 9 Am. St. Rep. 238, the accused was held guilty of larceny from the person of another, though it appeared that the other, who was a constable, disguised himself, feigned drunkenness, and lay down in an alley for the purpose of detecting thieves, and that he was conscious of the act when the accused took the money, and remained passive, with a view to afterwards arresting and prosecuting the accused. It is no defense to a prosecution for stealing stamps that the employer of the thief, pursuant to an arrangement with post office inspectors, marked sheets of stamps issued to the thief, and arranged for a meeting between him and the person to whom he had been in the habit of selling stolen stamps, and who had previously been arrested by the inspectors. People v. Smith, 251 Ill. 185, 95 N. E. 1041. 39 Alabama. Adams v. State, 13 Ala. App. 330, 69 So. 357. Illinois. Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139. Indiana. Thompson v. State, 18 Ind. 386. Iowa State v. Abley, 109 Iowa 61, 80 N. W. 225, 46 L. R. A. 862, 77 Am. St. Rep. 520. Kansas. State v. Stickney, 53 Kan. 308, 36 Pac. 714, 42 Am. St. Rep. 284; State v. Jansen, 22 Kan. 498. Michigan. People v. Laird, 102 Mich. 135, 60 N. W. 457. Nebraska. State v. Sneff, 22 Neb. 481, 35 N. W. 219. North Dakota. State v. Currie, 13 N. D. 655, 102 N. W. 875, 69 L. R. A. 405, 112 Am. St. Rep. 687. Texas. Robinson v. State, 34 Tex. Cr. 71, 29 S. W. 40, 53 Am. St. Rep. 702. And see Johnson v. State, 3 Tex. App. 590. See also Rex v. Bigley, 1 Craw. & D., where a householder, knowing of the purpose of a band to burglarize his house, provided a force for their reception, and on their knocking at the door in the night opened it, when they rushed in, to be overpowered. 40 People v. Emmons, 7 Cal. App. 685, 95 Pac. 1032; People v. Bunkers, 2 Cal. App. 197, 84 Pac. 364, 370; State v. Dudoussat, 47 La. Ann. 977, 17 So. 685. See also People v. Liphardt, 105 Mich. 80, 62 N. W. 1022. 41 Dalton v. State, 113 Ga. 1037, 39 S. E. 468. 42 The fact that a detective becomes a party to a scheme to commit robbery originated by the defendant, and of which the intended victim knows nothing, does not prevent the conviction of the defendant of an attempt to commit the offense. People v. Du Veau, 105 N. Y. App. Div. 381, 94 N. Y. Supp. 225. The fact that a person who anticipates that he may be robbed marks his money for the purpose of identifying the robbers does not amount to consent. Jones v. State, 48 Tex. Cr. 336, 87 S. W. 1157. Train robbery: State v. West, 157 Mo. 309, 57 S. W. 1071. 47 property by false pretenses,43 extorting money by force or threats,44 false swearing,5 procuring women for immoral purposes,46 disposing of false bank notes, and the refusal to stop street cars at a crossing.48 To come within the rule, however, it must appear that the person charged himself did everything necessary to make out a complete offense,49 and that the guilty intent that caused its commission was at all times his own,50 and nothing will be imputed to him that was done by a person present with the knowledge and consent of the victim.51 There can be no conviction if the conduct of the victim or his agent amounts to consent, in those cases where nonconsent amounts 43 Rex v. Ady, 7 Car. & P. 140. 44 It is not a defense that the money taken was marked and furnished to the victim by the prosecuting attorney for the purpose of entrapping the defendant into the hands of officers on watch, or that the victim went to meet the defendants at the place fixed by them, for the purpose of entrapping them. State v. Piscioneri, 68 W. Va. 76, 69 S. E. 375. 45 One indicted for false swearing may be convicted although it appears that the officer who administered the oath knew at the time that it was false, and made to obtain funds to which the affiant was not entitled, and such officer administered the oath for the purpose of instituting criminal proceedings. Thompson v. State, 120 Ga. 132, 47 S. E. 566. 46 People v. Moore, 142 N. Y. App. Div. 402, 127 N. Y. Supp. 98, aff'd 201 N. Y. 570, 95 N. E. 1136. 47 An indictment will lie, notwithstanding the person to whom the notes were uttered was the agent of the bank, and applied to purchase them for the purpose of detection and prosecution. Rex v. Holden, Russ. & R. 154. 48 That the refusal was on the signal of a police officer acting as a detective for the purpose of securing evidence of the violation of an ordinance requiring cars to stop at crossings, and that he had no bona fide desire to become a passenger, is not a defense to a prosecution for violating said ordinance. City of Camden v. Public Service R. Co., 84 N. J. L. 305, 86 Atl. 447, Ann. Cas. 1914 D 1090, aff'g 82 N. J. L. 242, 82 Atl. 609. 49 Georgia. Dalton v. State, 113 Ga. 1037, 39 S. E. 468. Kansas. State v. Jansen, 22 Kan. 498. Missouri. State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360. North Dakota. State v. Currie, 13 N. D. 655, 102 N. W. 875, 69 L. R. A. 405, 112 Am. St. Rep. 687. Wisconsin. Koscak v. State, 160 Wis. 255, 152 N. W. 181. 50 Woo Wai v. United States, 223 Fed. 412; State v. Jansen, 22 Kan. 498; State v. Piscioneri, 68 W. Va. 76, 69 S. E. 375. 51 Dalton v. State, 113 Ga. 1037, 39 S. E. 468; Love v. People, 160 Ill. 501, 43 N. E. 710; State v. Douglass, 44 Kan. 618, 26 Pac. 476; State v. Jansen, 22 Kan. 498; State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360. If detectives act as agents of others, their acts are attributable to their employers, in determining whether an alleged violation of the law was in fact originated, instigated, and perpetrated by such detectives in conjunction with the party accused. Koscak v. State, 160 Wis. 255, 152 N. W. 181. to an essential element of the crime,52 nor, according to some courts, if the crime was instigated by others than the accused for the purpose of entrapping him.53 § 188. Instigation. In the case of offenses against property rights of individuals, where the absence of consent is an essential element of the crime,54 there cannot be a conviction if the intended victim or his agent instigates or urges the commission of the offense in such a way as to amount to consent to its commission.55 And some courts have held independently of any question of consent on the part of the person injured, that a criminal act may not be punishable if the accused was induced to commit it by active co-operation and instigation on the part of public detectives,56 especially where the suggestion of the criminal act comes from them, and the criminal intention to commit the offense originates in their minds and not in that of the defendant.57 So it has been held that if a public officer, without previous solicitation on his part, is induced to accept a bribe by the active efforts and instigation of persons who wish to prosecute him, 52 See § 184, supra. 53 See § 188, infra. 54 See $184, supra. 55 See 8160, infra. 56 United States v. Echols, 253 Fed. 862; Sam Yick v. United States, 240 Fed. 60; Ford v. City of Denver, 10 Colo. App. 500, 51 Pac. 1015. See also State v. Currie, 13 N. D. 655, 102 N. W. 875, 69 L. R. A. 405, 112 Am. St. Rep. 687; Smith v. State, 61 Tex. Cr. 328, 135 S. W. 154, and the other cases cited in the following notes. Where a military police officer asks the defendant to procure him a drink, with the purpose and design that a crime shall be committed, in order that he may arrest the defendant therefor. United States v. Echols, 253 Fed. 862. "Decoys are permissible to entrap criminals, but not to create them; to present opportunities to those having intent to or willing to commit crime, but not to ensnare the law-abiding in unconscious offending.'' United States v. Healey, 202 Fed. 349. 57 United States v. Echols, 253 Fed. 862. Public policy will not justify a conviction where police officers induce or procure the defendant to commit an offense which he did not intend to commit, and would not otherwise have committed. Salt Lake City v. Robinson, 40 Utah 448, 125 Pac. 657. A person who is induced to enter into a conspiracy to smuggle Chinese into the United States cannot be convicted, where there was no evidence that he had ever previously committed or thought of committing any offense against the immigration laws, and the whole scheme originated with the government officers, whose purpose was to place the defendant in a position where he might be compelled to disclose facts in relation to the unlawful acts of other persons, which he was suspected to have knowledge. Woo Wai V. United States, 223 Fed. 412. of with the cooperation of the public authorities, he should not be indicted or punished.58 According to the weight of authority, however, the mere fact that one who commits an offense was induced to do so by another is not a defense, except in those cases where the criminality of the act is shown to be absent by the fact of the inducement,59 and hence is not a defense in cases where the primary offense is against the public and is one which no public officer or other person would have power to consent to so as to bind the state.60 That solicitation is no defense has been said to be especially true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct.61 58 The members of a city council cannot be convicted of a conspiracy to subvert the due administration of the laws by passing an ordinance pursuant to an agreement whereby they were to receive bribes for their votes, where the money was to be paid by a detective, who was a prime mover in and an essential party to the conspiracy, since the conspiracy charged could not be proved without his complicity, and with him it ceased to be a conspiracy to pervert the due administration of the laws, and was no crime, and hence an essential element of the crime was lacking. State v. Dougherty, 88 N. J. L. 209, 96 Atl. 56, rev'g 86 N. J. L. 525, 93 Atl. 98. See also State v. Dudoussat, 47 La. Ann. 977, 17 So. 685, where it was said that, on such a state of facts, the accused would be entitled to an acquittal. 59 United States. Hanish v. United States, 227 Fed. 584. Iowa. State v. Abley, 109 Iowa 61, 80 N. W. 225, 46 L. R. A. 862, 77 Am. St. Rep. 520. Maryland. Hummelshime v. State, 125 Md. 563, 93 Atl. 990, Ann. Cas. 1917 E. 1072. Michigan. People v. Liphardt, 105 Pennsylvania. Com. v. Wasson, 42 Pa. Super. Ct. 38. Texas. Davis v. State, 70 Tex. Cr. 524, 158 S. W. 288. 60 Alabama. Strother v. State, 15 Ala. App. 106, 72 So. 566; Swope v. State, 12 Ala. App. 297, 68 So. 562; Borck v. State, 39 So. 580. V. Maryland. See Hummelshime State, 125 Md. 563, 93 Atl. 990, Ann. Cas. 1917 E 1072. New York. People v. Mills, 178 N. Y. 274, 70 N. E. 786, 67 L. R. A. 131, aff'g 91 App. Div. 331, 86 N. Y. Supp. 529. North Carolina. State v. Smith, 152 N. C. 798, 67 S. E. 508, 30 L. R. A. (N. S.) 946. Oklahoma. Moss v. State, 4 Okla. Cr. 247, 111 Pac. 950; De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538. Texas. Davis v. State, 70 Tex. Cr. 524, 158 S. W. 288. See also the other cases cited in the following notes. 61 Moss v. State, 4 Okla. Cr. 247, 111 Pac. 950. In considering the question of public policy, a clear distinction is to be observed between measures used to entrap a person into crime in order, by making him a criminal, to aid the instigator in the accomplishment of some corrupt private purpose of his own, and artifice used to detect per Under this rule it has been held that instigation or inducement is no defense to a prosecution of a public officer for receiving 62 or conspiring to receive 63 a bribe, or to a prosecution for offering a bribe to such an officer,64 or for attempting to steal public documents or to remove them from the custody of the officer to whom they are confided by law; 65 that the fact that an officer of a labor union solicits a bribe is no defense to a prosecution for bribing him; 66 that it is not a defense to a prosecution for attempting to commit an abortion that the woman, acting as a detective, applies to the defendant to have the operation performed; 67 that the fact that a shipment of misbranded mineral water in interstate commerce is secretly induced by a government detective in order to create basis for a criminal prosecution is not a defense to such prosecution; 68 that the fact that an agent of the state procures from a physician a prescription for a certain drug is not a defense to a prosecution for issuing the prescription in violation of law; 69 and that it is no defense to a prosecution for counterfeiting a trade-mark that the counterfeits were printed at the instance of an agent of the owners of the trade-mark, and were paid for with their money, where their purpose was to ascertain if the defendant was engaged in violating the law.70 As a rule the fact that a detective or other person purchases liquor from a dealer for the purpose of prosecuting him for selling in viola sons suspected of being engaged in criminal practices, particularly if such practices vitally affect the public welfare, rather than individuals. Com. v. Wasson, 42 Pa. Super. Ct. 38. 62 It is no defense that the officer was solicited to receive the bribe, even though this was done at the instigation of the public officials. People v. Liphardt, 105 Mich. 80, 62 N. W. 1022. 63 It is no defense that the officers were induced to enter into the conspiracy by detectives. Hummelshime v. State, 125 Ind. 563, 93 Atl. 990, Ann. Cas. 1917 E 1072; Com. v. Wasson, 42 Pa. Super. Ct. 38. 64 It is no defense that the offer was induced by the acts or conduct of the party to whom it was made. Davis v. State, 70 Tex. Cr. 524, 158 S. W. 288. 65 People v. Mills, 178 N. Y. 274, 70 N. E. 786, 67 L. R. A. 131, aff'g 91 App. Div. 331, 86 N. Y. Supp. 529. 66 Where he is not a prosecuting officer or public official of any kind. People v. Bock, 69 N. Y. Misc. 543, 125 N. Y. Supp. 301, aff'd 148 N. Y. App. Div. 899, 132 N. Y. Supp. 1141. 67 People v. Conrad, 102 N. Y. App. Div. 566, 92 N. Y. Supp. 606, aff'd 182 N. Y. 529, 74 N. E. 1122. 68 United States v. Morgan, 181 Fed. 587, rev'd on other grounds, 222 U. S. 274, 56 L. Ed. 198, 32 Sup. Ct. 81. 69 Hyde v. State, 131 Tenn. 208, 174 S. W. 1127. 70 People v. Krivitzky, 168 N. Y. 182, 61 N. E. 175, aff'g 60 App. Div. 307, 70 N. Y. Supp. 173. |