State v. Parr ( 1955 )

MR. JUSTICE ANDERSON

(dissenting) :

I agree generally with that which has been said by Mr. Justice Davis.

Great though some may feel the need for the use of decoys in the suppression of illicit sales of intoxicants to minors, I nonetheless vehemently condemn such a practice when its result is overshadowed by being weighed in proportion with the damage it may do to the young boy or girl who is the instrument used by the officers who seek the youngster’s aid.

The facts leading up to the use of a decoy in the instant case do violence to the precept upon which our modern law concerning juveniles is based.

Jerry Gallagher was not just a minor. He was not just a boy as the majority opinion would like the reader to think. He was a juvenile locked up in jail from where he was taken to perform his act, to where he was returned after he played his part, and from where he was released a few days later. Our statutes say he is not a criminal; he is a misguided, misdirected boy who needs care and guidance. But here he is directed by his keepers to commit a crime in violation of R.C.M. 1947, sections 4-413 and 10-617, for which upon its commission his most likely thought was he would be released from jail and excused for the transgression that had lodged him there in the first place.

Left unanswered is what effect has the whole scheme had upon young Gallagher, and more important what effect, if left unchallenged, will similar schemes have upon young Gallaghers of the future.

Apart from wliat is said above there is the well-defined exception to the general rule regarding the use of decoys by the government. Nothwithstanding Mr. Justice Angstman’s comments to the contrary, there were limitations placed upon defendant’s counsel in his effort to put facts before the jury so as to show that this case came within the exception.

These efforts to show that Gallagher appeared of legal age were objected to and sustained by the court below. These efforts should have been allowed to go to the jury and the jury should have been instructed on the question of entrapment wherein concealed disability was a factor. United States v. Healy, D.C. 1913, 202 F. 349; Voves v. United States, 7 Cir., 1918, 249 F. 191.

I would reverse and dismiss.

I am authorized to state that Mr. Justice Davis agrees with my views as here expressed.