#### STATE v. STEPHEN SMITH.

(Filed 23 March, 1910.)

Spirituous Liquors — Procuring Sale — Police Officers — Evidence— “Connivance.”

A conviction for retailing whiskey, contrary to statute, is not affected by the fact that it was obtained upon evidence obtained by police officers furnishing money and employing one to buy it from defendant, without suggestion that any inducement to the sale had been held out to him. There is a distinction from those cases holding that a “connivance” of the parties will bar a cause of action.

Appeal by defendant from W. B. Allen, J., at February Term, 1910, of Wake.

The facts are stated in the opinion of thé Court.

Attorney-General' for the State.

Douglass Jc Lyon for defendant.

Clabk, C. J.

The defendant was indicted for retailing whiskey. The evidence for the State tended to show that J. P. Stell, the chief of police of Raleigh, furnished certain money to witness Hammock with which to buy liquor, and, also, additional pay for his services in the matter, and under orders of the chief of police he went to the defendant, in company with one Pope, a city policeman, and purchased intoxicating liquor of the defendant, with the view of having him indicted and punished in the court of the police justice of the city of Raleigh.

*799Tbe sole question presented by tbe appeal is whether this conduct on tbe part of tbe chief of police is a bar to tbe prosecution. In McLean on Criminal Law, sec. 118, it is said: “A question analogous to tbe one discussed in tbe preceding section, and yet depending for its solution on somewhat different principles, is as to whether one who has.been decoyed into a criminal act for tbe purpose of securing bis detection and punishment is relieved from criminal liability by that fact. It is sometimes suggested that it is very improper and unworthy on tbe part of prosecuting officers to induce men to be criminals for tbe purpose of securing their conviction, and such conduct has been criticised; but it is a well-settled principle that tbe wrongful acts of officers of tbe State in connection with a prosecution will not be imputed to tbe State so as to excuse tbe de-. fendant from criminal liability for what be actually does.”

Evanston v. Myers, 172 Ill., 266, is directly in point. “A driver of a beer wagon who sells beer in violation of city ordinances is liable to punishment, though tbe city furnished tbe money and employed tbe purchaser as a detective to discover violations of tbe ordinance, where no fraud or deceit was used in tbe purchase or any inducement offered other than a willingness to buy.”

In Rater v. State, 49 Ind., 508, it is held that “tbe fact that a party was deceived into violation of tbe law by one who was employed as a detective will not be a justification.”

In People v. Rush, 113 Mich., 539, it is held: “Tbe fact that a witness to whom an unlawful sale of liquor was made was employed by the prosecuting attorney as a detective with a view to respondent’s prosecution is no defense.”

Many other cases are to tbe same purport. Among them, Grimm v. U. S., 156 U. S., 604, where a detective suspecting a person was using tbe mail for sending out obscene matter, wrote a letter, in response to which the defendant mailed such matter. It was held that tbe defendant could not set up the defense that but for such application be would not have sent out this response. In People v. Everts, 112 Mich., 194, and People v. Rush, 113 id., 539, it was held no defense in an indictment for an unlawful sale of liquor that it was made to a detective sent by a prosecuting attorney that be might use such purchase and sale as evidence. Indeed, the authorities are numerous, and it would cripple tbe effective enforcement of tbe criminal law if it were not permissible to thus procure evidence.

There are some seeming- exceptions, for instance, in larceny, whenever the conduct of the owner amounts to a consent that bis property may be taken. Tbe reason is that in larceny it is *800an indispensable element of the offense that the property shall be taken “against the will of the owner.” Also, in proceedings for divorce, if the plaintiff secures some one to entice the defendant into illicit acts. The reason is that “connivance” is always a bar to the plaintiff’s cause of action. Dennis v. Dennis, 57 Am. St., 95. But as to prosecution for offenses, not against individuals, but against the public, like the present, it is no defense that the illegal sale was made to a party who bought not for his own use, but to aid in convicting the seller. It is not the motive of the buyer, but the conduct of the seller which is to be considered.

The Attorney-General in concluding his brief s.ays: “In the case at bar it does not appear that the chief of police told Hammock to induce any sale. He simply furnished the money and told him to endeavor to buy the liquor. The officer doubtless had the best of reasons for believing there was a live ‘tiger’ in the house of defendant. He put out his bait and the tiger, for all his cunning, ‘bolted it,’ and now complains that ’the law of the jungle was violated, else he would not have been entrapped.” The defendant’s counsel, in reply to this, strenuously contended that his client was a donkey, not a tiger. As to that controversy, "Non nostrum est, tantas componere lites."

In the appeal, we find

No error.