People v. Barkdoll

Defendant was indicted for and convicted of having unlawfully sold, furnished, and distributed alcoholic liquor to one William Prey within the boundaries of the third supervisor district of Mendocino County, the same being no-license territory. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

Counsel for appellant present three questions for review: 1. That the court erred in not granting defendant’s motion, made, at the close of the people’s evidence, to instruct the jury to acquit; 2. That the court erred in not permitting defendant to introduce evidence of his good character; 3. That the court erred in not pronouncing judgment on the verdict of the jury.

The first and third of these points rest upon the same proposition as stated in defendant’s brief: “That.all the evi

Defendant was conducting a barber-shop in the town of Covelo, Bound Valley. The shop consisted of a front or operating room and a room back of the working-room. One Swaney was in the service of the county, employed by Sheriff Byrnes, and was receiving fifty dollars per month and no other compensation for his services, which were to ferret out “blind piggers,” or illicit sellers of intoxicating liquors, in Bound Valley. Among his acquaintances in the valley was one Frei, or Frey, the prosecuting witness. Frei was well known to defendant and was in the habit of visiting defendant in his shop “to chat with him—pretty chummy.” Swaney and Frei met at Covelo in front of defendant’s barber-shop on the day charged in the indictment, and Swaney asked Frei to go into defendant’s shop and buy a small bottle of whisky, giving Frei a dollar of his own money with which to pay for it. Frei did not know at the time that Swaney was a detective. Frei was somewhat given to drinking, and admitted that he had been drinking that day and might have been in some degree intoxicated. His testimony was that he went into the shop and purchased “one of the small soda bottles or pint bottles” and afterward delivered it to Swaney and drank, some of the contents with Swaney and another man in a near-by alley; that it was delivered to him personally in the back room of his shop by defendant, to whom he paid the dollar given him by Swaney. The bottle, with what remained of the contents, was afterward delivered to the sheriff, who marked it for identification and placed it in his safe, where it remained and was produced at the trial and its contents shown to contain forty-five per cent “of absolute alcohol by volume.” Detective Swaney was asked to state what was done at the time and testified as follows: “Why I met Frei on the street in front of Bark-doll’s barber-shop and I asked him if he could get me a bottle of whisky and he said yes he would, so I gave him a dollar and we went over on the sidewalk in front of the barber-shop and he told me to wait outside and he went in and about ten minutes he came out and said he didn’t have

Counsel for defendant cite certain Colorado cases which announce the rule that “the sale of liquors in violation of a town ordinance to one who purchases the liquor at the instigation of the town for the purpose of laying a foundation to prosecute the seller does not authorize a conviction under the ordinance.” (Wilcox v. People, 17 Colo. App. 109 , [ 67 Pac. 343 ]; Ford v. City of Denver, 10 Colo. App. 500 , [ 51 Pac. 1015 ]; People v. Braisted, 13 Colo. App. 532 , [ 58 Pac. 796 ].) In People v. Chipman, a later Colorado case, 31 Colo. 90 , [ 71 Pac. 1108 ], the detective was in the pay of the municipality, but purchased the liquor with his own money. It was held no defense that he was an officer. In People v. O’Brien, 35 Mont. 482 , [10 Ann. Cas. 1006, 90 Pac. 520 ], a Montana ease, the money with which the liquor was purchased was furnished the witness by the county attorney. It was held no defense. Citing the rule as stated in 23 Cyc., at page 184: “It is no defense to a prosecution for an illegal sale of liquor that the purchase was made by a ‘spotter’ detective, or hired informer.” Numerous cases are cited in support of the text.

Where a person is innocent of any intention to commit a crime and is inveigled into its commission by an officer of the law for the purpose of advancing his standing for efficiency or to obtain revenue by fine for the municipality, it might be said to uphold such practices would be repugnant to- any just conception of good morals and violative of sound public policy. But we have no such case here. The facts and circumstances surrounding the transaction in the present instance were quite sufficient to justify the jury in believing that the defendant was ready, able, and willing to comply with the request made of him. He testified’ in his own defense and his testimony went no further than to deny that he sold or gave a bottle of liquor to Frei, as testified to by him. The evidence in the ease has no tendency to place defendant in the category of those persons in whose behalf some courts have enforced the rule invoked by him. Defendant’s reputation for truth and veracity was in no wise questioned by any evidence introduced by the people. It was not error to refuse defendant’s offer to prove that his character in that respect was good where there was no evidence introduced tending to show that his general reputation for truth and veracity

The judgment and the order are affirmed.

Burnett, J., and Hart, J., concurred.