People v. Schiddel ( 1922 )

Sharpe, J.

The defendant was convicted of selling two pints of whisky to Claire Stoddard and George Snedicor at the city of Jackson on March 15, 1921, and seeks review thereof on exceptions before sentence.

Stoddard and Snedicor were officers charged with the enforcement of the prohibition law. They registered at defendant’s hotel. Snedicor, who was somewhat well known, assumed the name of Davis. Defendant, at Snedicor’s request, brought two pint bottles of whisky to a room in the hotel in which both Stoddard and Snedicor were, for which they paid him $10. Defendant was a witness in his own behalf. On direct-examination he testified that Snedicor asked him, “Can you get me any liquor?” and he said “No. There was a man sitting there on the outside, his name is Jack Wilson, and he jumped up and said he could get him a quart for $10.” That later—

“Mr. Snedicor came in, and he went to Mr. Stoddard’s room; this Jack Wilson was hanging around and 1 was stalling him along, and I asked him where he got his liquor from. I asked Jack Wilson. I took him to 105 room and talked with him there ; I asked him where he got his liquor from and ‘he said he got it from Detroit, and I asked him how he got it in and he said, ‘Why, they send it here in a near-beer barrel.’ I said, ‘In a near-beer barrel?’ He said, ‘Yes,’ and then he said to me, ‘What are you trying to do, you trying to hang me or something?’ and I said, ‘No, I am not.’ So I took the liquor, the two pints of liquor and took it into Mr. Stoddard’s room and handed them to Mr. Stoddard and took the $10 and gave it to Mr. Wilson. Wilson was standing on the outside of the door when I gave him the money.”

He further testified that he made the sale for the purpose of getting evidence against Wilson and pursuant to an arrangement he had made with Van Loomis, an inspector of the State food and drug department. On cross-examination he admitted that he did not inform either Stoddard or Snedicor that he got the liquor from; Wilson.

Defendant’s counsel insisted on their right to go to the jury on the question of his “good faith or lack of it” in making the sale. The court instructed the jury that if they believed the testimony of Stoddard and Snedicor and that the admissions of the defendant were true, it was their duty to convict defendant. The jury retired and soon returned with a verdict of guilty. As a result of the discussion with defendant’s counsel on the question of good faith, the trial court prepared the following question:

“In making the admitted sale to Stoddard and Snedicor, was Schiddel acting in good faith for the purpose of detecting and exposing one Jack Wilson as a violator of the prohibition law?”

and instructed the foreman to poll the jury on the question, and if they convicted the defendant, advise the court of the jurors’ answers thereto. This was done, the foreman at the time of announcing the verdict saying that “two answer ‘Yes,’ and ten answer ‘No.’ ” Defendant’s counsel, while submitting no authorities, argue strenuously that the jury should have been instructed that if the sale was made by defendant for the purpose indicated in the special question they should acquit the defendant.

There would be merit in defendant’s claim if based on an arrangement claimed to have been made with Stoddard and Snedicor, or either of them. He admits that so far as they were concerned he sold them two pint bottles of whisky for which they paid him $10 and that they had no knowledge as to where or of whom he procured it. This was a clear violation of the law on his part. He admits that he could have procured the evidence against Wilson quite as effectively without the delivery of the’liquor. The statute absolutely prohibits the sale. The intent with which it' was made, while it may affect the sentence imposed, is not involved as an element of the crime. An interesting discussion of the question presented will be found in People v. Roby, 52 Mich. 577 (50 Am. Rep. 270). The court should not have submitted the special question to the jury. The statute providing therefor (3 Comp. Laws 1915, § 12611) has application only in. the trial of civil cases.

The other assignments, while not discussed, have had consideration. We find no reversible error in the record. The court may proceed to sentence.

Fellows, C. J., and Wiest, McDonald, Clark,, Bird, Moore, and Steeke, JJ., concurred.