State v. Hughes , 208 N.C. 542 ( 1935 )

ClakksoN, J.

There was no exception to tbe charge of tbe court below, tbe exclusion of evidence on tbe trial in tbe court below is tbe bone of contention. Tbe defendants contend: Tbe real, controlling-question involved in tbis case is: "Whether or not tbe principle laid down in tbe opinion in tbe case of State v. Goffney, 157 N. C., 624, applies to tbe facts of tbis case. We think tbe facts in tbis case differ materially from tbe Goffney case, as will be hereafter shown.

Tbe defendants are charged with tbe burglary of tbe Spruce Pine Store Company, Inc. Tbe defendant Tom Hughes admitted going into tbe store, and testified: “Yes, I tried to work tbe combination, tried awfully hard. I meant to take every dollar in tbe safe. My purpose in going there was to rob tbat safe. Yes, I was trying to work tbe combination when tbe sheriff came up. He put his gun on me. After-wards be apologized and told me tbat I was tbe second man be had ever jrat bis gun on. I told bim I didn’t blame bim for it, and tbat I would have done tbe same way. I don’t know if I bad bad a gun if I would have put my gun on him.”

There is no evidence tbat Cannon bad any authority to consent to tbe defendants burglarizing tbe Spruce Pine Store Company, Inc., nor was it in tbe course of bis employment, express or implied. Before tbe acts or statements of an agent are admissible against tbe owner, it must be shown tbat they are authorized, or in tbe course of tbe employment, or such facts as would indicate implied authority. Gazzam v. Union Fire Ins. Co., 155 N. C., 330; Rangeley v. Karris, 165 N. C., 358; Bank v. Boone-Fork Mfg. Co., 186 N. C., 144; O’Donnell v. Carr, 189 N. C., 77; Elmore v. R. R., 189 N. C., 658 (672); Bixler v. Britton, 192 N. C., 199. In fact, Cannon testified, and we think it competent: “I was at borne at tbe time tbe store was entered; was not present in tbe store when it was robbed. Q. Did you give your consent to either one of these defendants to rob tbe Spruce Pine Store Company’s store? Or did you conspire, confederate, or agree with these defendants to enter» this store and rob tbe safe ? A. I did not.”

Tbe exclusion of defendants’ evidence on tbe record was not error, and we think if it bad been admitted it would have been no defense. There is a vast distinction in law and morals in cases of this kind, (1) where an agent or servant under authority of tbe owner leads another into temptation to commit tbe crime, and (2) one who has the guilty intent previously formed to commit tbe particular crime and steps are taken to detect tbe perpetrator.

In 18 A. L. R., p. 174, tbe principle is stated thus, citing numerous authorities: “Where the owner, in person or by bis duly authorized agent, suggests to tbe accused tbe criminal design, and actively urges, cooperates with, and assists tbe accused in tbe taking of tbe goods, such conduct amounts to a consent to tbe taking, and tbe criminal quality of tbe act is wanting.” In tbe old English case of Reg. v. Lawrence (1850), 4 Cox C. C., 438, it is said: “Tbe reason is obvious, viz.: Tbe taking in such cases is not against tbe will of tbe owner, which is tbe very essence of tbe offense, and hence no offense, in tbe eye of tbe law, has been committed. Tbe offender may be as morally guilty as if tbe owner bad not consented, but a necessary ingredient of legal guilt is wanting.” See U. S. v. Whittier (1878), 5 Dill., 35, Fed. Cas. No. 16,688. 66 A. L. R., 506, et seq.

In State v. Adams, 115 N. C., 775, we find: “Tbe court correctly told tbe jury tbat 'if there was tbe guilty intent previously formed by tbe defendant to steal certain property, and be carried out such design previously formed, be is guilty, notwithstanding tbe owner of tbe property was advised of tbe intended larceny, appointed agents to watch bim, and could bave prevented tbe tbeft, but did not do so, and allowed him to commit tbe tbeft, with a view of having bim subsequently punished.’ It was error, however, further to tell them that if there was tbe previous intent to steal, tbe defendant would be guilty, notwithstanding tbe owner’s agent bad told a servant to go to defendant’s bouse and persuade bim to come and steal tbe sack. Dodd v. Hamilton, 4 N. C., 471; State v. Jernagan, 4 N. C., 483. It was also error to refuse tbe fifth prayer for instruction. ’That larceny cannot be committed when tbe owner, through bis agent, consents to tbe taking and asportation, though such consent was given for tbe purpose of apprehending tbe felon,’ and likewise tbe sixth prayer, ‘That larceny cannot be committed unless tbe thing be taken against tbe will of tbe owner.’ Tbe object of tbe law is to prevent larceny by punishing it, not to procure tbe commission of a larceny that tbe defendant may be punished. Tbe evidence of tbe State was that tbe owner’s agent (Wilson), having information of an intended tbeft of cotton by tbe defendants, watched tbe cotton bouse Monday and Tuesday nights without anyone coming. That be returned Wednesday night and watched till very late, and, no one coming, be filled up a couple of sacks with cotton, and leaving one of tbe sacks in tbe cotton bouse, be gave tbe other sack to one Julia Harris, and told her to go to tbe defendant’s bouse, three hundred yards distant, and give it to bim and tell bim that be could get some more cotton. Julia did as directed, and in a little while she returned with tbe defendant, who entered tbe cotton bouse, took tbe other sack of cotton upon bis shoulder and carried it home. Tbe court should bave sustained tbe demurrer to tbe evidence.” In State v. Adams, supra, tbe agent of tbe owner sent one Julia Harris to Adams’ bouse with a bag of cotton with an invitation “tell bim be can get some more cotton.” Tbe agent of tbe owner procured Adams to get tbe cotton and sent a party to assist bim in doing so. Tbe writer of this opinion appeared for Adams in tbe above case, some 40 years ago, and obtained a new trial.

It is tbe contention of tbe defendants that tbe case of State v. Goffney, supra, is on all fours with tbe present one. We do not think so. There tbe owner of a store instructed Richard (bis servant) to induce defendant to break in bis store. (P. 626) : “It appears that Barnes, tbe owner of tbe building entered, directed bis servant Richard Farmer to induce tbe defendant to break in bis (Barnes’) store; that tbe servant obeyed bis orders, and that be and defendant entered tbe store together, and that Barnes was present watching them, and arrested defendant after be entered.” Tbe Court rightfully held there was no burglary, saying, “If it were possible to bold tbe defendant guilty of a felony under such circumstances, then Barnes could be likewise convicted of feloniously breaking and entering bis own store, for be was present aiding and abetting tbe entry of tbe defendant and induced him to enter. That would of course be a legal absurdity.”

In Yol. 1, Wharton’s Criminal Law, sec. 190, at pp. 240-1, we find: “When a person or those officers of tbe law wbo are charged with its enforcement have reason to believe that a crime is about to be committed or attempted, there is nothing legally or morally wrong in laying a trap, setting out a decoy, or placing a detective in observation, or in entering into a conspiracy with others to detect and punish the offenders; and the waylaying and watching to detect the commission of crime by the prosecutor or witnesses, in order to obtain evidence with which to convict, will not constitute a defense, in a prosecution for the commission of the crime or offense.” To sustain the text numerous authorities are cited, including the Adams case, supra. See State v. Smith, 152 N. C., 798.

In Sorrells v. U. S., 287 U. S., 435 (441-2), Qhief Justice Hughes lays down this sound doctrine in law and morals: “It is clear that the evidence was sufficient to warrant a finding that the act for which defendant was prosecuted was instigated by the prohibition agent, that it was the creature of his purpose, that defendant had no previous disposition to commit it, but was an industrious, law-abiding citizen, and that the agent lured defendant, otherwise innocent, to its commission by repeated and persistent solicitation in which he succeeded by taking-advantage of the sentiment aroused by reminiscences of their experiences as companions in arms in the World War. Such a gross abuse of authority given for the purpose of detecting and punishing crime, and not for the making of criminals, deserves the severest condemnation, but the question whether it precludes prosecution or affords a ground of defense, and, if so, upon what theory, has given rise to conflicting opinions. It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. (Citing numerous authorities.) The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.”

We see no error in the court excluding the evidence of Hughes and •others in the court below. If it had been admitted, we do not think it would be a defense for the defendants. There were many robberies being committed from the Spruce Pine Store Company, Inc. Scott Hickey, an employee in tbe store, was approached by defendant Hughes. He wanted the combination to the safe so that he could break in the store and steal the pay roll of the Harris Clay Company, amounting to $1,200 or more, which would be in the safe on a certain day. .Cannon gave Hickey a paper with a combination on it and Hickey gave it to Hughes. Hughes, instead of being enticed, tried to get Hickey, an honest employee, as the evidence discloses, to join with him in the burglary and larceny, which Hickey refused to do and reported the matter tp his employer, Cannon — as he should have done. Hughes was not let in the store by any person connected with the store, but broke in and was attempting to open the safe when captured. He said: “I meant to take every dollar in the safe.- My purpose in going there was to rob that safe.” "We think there was no violation in law or morals in catching the defendant Hughes in the manner in which it was done. Hughes admitted he burglarized the store and Vance was convicted as an aider and abetter. The exclusion of the evidence of Hughes, Hickey, and Cannon we do not think prejudicial to the defendant Vance. For the reasons given, we find in the judgment of the co,urt below

No error.