DocketNumber: Docket No. 1193.
Judges: Finlayson
Filed Date: 12/31/1924
Status: Precedential
Modified Date: 10/19/2024
This is an application for a writ of habeas corpus to secure the release of petitioner from detention after a preliminary examination in the justice's court upon a complaint charging him with the crime of selling intoxicating liquor in violation of what is generally known as the Wright Act [Stats. 1921, p. 79]. Petitioner was bound over to the superior court for Orange County, and he now seeks his discharge upon the ground that the order holding him to answer was made without reasonable or probable cause. *Page 485
The testimony, as set out in the transcript, shows substantially the following: On November 13, 1924, the date of the alleged offense, the prosecuting witnesses, two men employed as "investigators" by an organization styling itself The Anti-Saloon League, met petitioner at a pool-hall in Huntington Beach. Two days previously these self-constituted "investigators," endeavoring to ascertain what places there were in Orange County where intoxicating liquors were being sold, sought an introduction to petitioner through an employee of the pool-hall. Upon that occasion the prosecuting witnesses asked petitioner if he could get them some liquor. Though he replied that he could get it for them, no attempt seems to have been made by petitioner at that time to procure any intoxicants for his newly-made acquaintances. Two days later, November 13, 1924, the date laid in the complaint filed against petitioner, he and the two "investigators" again met at the pool-room. Upon that occasion The Anti-Saloon League representatives asked petitioner if he could get them two bottles of whisky. In reply petitioner said that he did not know whether he could or not, but that he would try and see if he could get it. He told the "investigators" that the cost was three dollars a pint. Thereupon one of the men gave petitioner the sum of six dollars. Petitioner then left the pool-room, ostensibly for the purpose of getting the whisky. Returning in about ten minutes without any liquor, he asked one of the prosecuting witnesses if the latter had a "car." Upon receiving an answer in the affirmative, petitioner said that they would drive to a certain place. Guided by petitioner, he and one of the "investigators" drove to a hotel in Huntington Beach. There petitioner left the automobile, climbed a stairway leading to the hotel and was gone about five minutes, when he returned to the vehicle and said, "They haven't any either. This is the first time I ever went in there that I never got any liquor." Under petitioner's direction he and his companion then drove to a place in Huntington Beach known as "Brownings," but found no one there: They then parked the car at a place near by. Petitioner left the vehicle and was gone about fifteen minutes, when he returned and said, "No, they have got none." The two men then drove to an appointed place where they picked up the other "investigator." Still guided by petitioner, the three men then drove to a Mr. *Page 486 Bickmore's place in Westminster. Petitioner told his two companions that he was quite sure that he could get some liquor at Bickmore's — that "he had never failed there." When they arrived at Bickmore's place petitioner left the car, went into Bickmore's home and in about fifteen minutes returned with two bottles of whisky, which he delivered to one of the prosecuting witnesses — the one from whom he had received the six dollars at the beginning of their quest.
Petitioner's contentions are: (1) That there is no evidence that he "sold" any whisky; that the testimony shows merely that he acted as the agent for the two "investigators" in the purchase of the liquor, and that under the Volstead Act, the "penal provisions" of which are adopted by the Wright Act, the purchase of liquor is not a crime — citing Singer v. United States, 278 Fed. 415, where the court says: "It is a crime to sell, but not a crime to purchase." (2) That if he committed any offense he was inveigled into it by the "investigators," who paid him the money with which to make the purchase.
If petitioner were entitled to a discharge merely upon a showing that the evidence is insufficient to make out a case of probable cause for believing him guilty of the specific crime for which he was held to answer — the crime of "selling" intoxicating liquor — we should entertain grave doubt as to the legality of his imprisonment. Many cases are to be found in the books to the effect that if a defendant is in no way interested on behalf of the seller, but simply acts as agent of the prosecutor, he is not guilty of making a sale. The Texas court of criminal appeals, having under consideration a state of facts somewhat similar to that presented here, held that the evidence disclosed a case of agency in the purchase of the liquor and not a "sale" by the accused. (Givens v. State, 49 Tex. Cr. 267 [
[1] However, we do not find it necessary in this case to determine whether the evidence is sufficient to show probable cause for believing petitioner guilty of selling the liquor, for it unquestionably suffices to show probable cause for believing him guilty of possessing it unlawfully. "Possession," says the court in Beyer v. United States, 282 Fed. 226, "is a crime separate and distinct from the crime of the sale of liquor." In section 3 of the National Prohibition Law it is expressly declared that "no person shall . . . possess any intoxicating liquor except as authorized in this act." [2]
Possession, therefore, except as authorized by the Volstead Act, is one of the acts which the Wright Act, by its adoption of the "penal provisions" of the federal statute, denounces as a criminal offense. [3] It is the established rule in this state that where the evidence before the committing magistrate shows probable cause to believe the accused guilty of any criminal offense, though it be an offense other than the one for which he was held to answer, it is not proper to discharge him uponhabeas corpus until the proper authorities have had an opportunity to cause the correct charge to be preferred against him. (Ex parte Keil,
[5] We do not find any merit in petitioner's second point.[6] It may be conceded that it would be violative of sound public policy and repugnant to good morals to uphold the conviction of a person who, being entirely innocent of any intention to commit a crime, was inveigled into its commission by an officer of the law or by a private detective *Page 488
hired for that purpose by some self-constituted guardian of the public morals. (People v. Barkdoll,
The writ is denied.
Works, J., and Craig, J., concurred.