
    Joshua Strait v. State of Mississippi.
    Ceiminal Law. Burglary. Decoy.
    
    One who is let into a building by a decoy or detective in the service of and acting for the owner, is not guilty of burglary in so entering.
    Erom the circuit court of Lauderdale county.
    HoN. GbeeN B. HuddhestoN, Judge.
    Strait was indicted for burglary, tried, convicted, and appealed to the supreme court. The opinion states the facts of the case.
    
      Alexander & Alexander and F. G. Lewis, for appellant.
    On the uncontroverted facts appellant was not guilty of burglary. The authorities are uniform. There is not a discordant note. The cases are compiled and the law stated in 5 Am. & Eng. Ene. L., 51, and in Conner v. People, 25 L. R. A., 341.
    In the case at bar the breaking, the opening of the door with the key, was by Green Morton the decoy employed by Ethel-ridge & McBeath. The case is within the rule announced in People v. Collins, 53 Cal., 185. Many cases are compiled and the true rule stated, in a note to Thompson v. State, 81 Am. Dec., 365. The following cases are to the point: State v. Jansen, 22 Kan., 498; Gom. v. Hollister, 157 Pa., 13; People v. McCord, 76 Mich., 200; Sanders v. People, 38 Mich., 218; Allen v. State, 40 Ala., 334.
    
      Monroe McGlurg, attorney-general, for the appellee.
    It avails the appellant nothing that he did not unlock the door: his intent was to enter the office to steal, and if he let Morton have the key to escape himself the guilt of burglary, he was again deceived, not by Morton, but by himself, in that he gained admission by fraud, intending tO' steal, and is as guilty of the burglary as if he had knocked the door down to get in. That he furnished the key with which the door was opened, and that he entered, is not denied. His conduct at the moment he was seized, and having the key that unlocked the inner door, as well as his confession to McBeath and Culpepper, and his testimony with reference to Morton’s several propositions to go in an office, show conclusively the intent with which he entered.
    It is beyond question that the owners did not consent for their office to be burglarized, nor did they give any instructions to Morton, nor did the owners or Morton suggest the burglary. On the contrary, the owners pulled the windows down, closed the inner door to the safe and locked it, shut the outer door of the safe, and turned on the day combination and closed and locked the office doors and went home. Mr. Ethridge testified that- he did nof want his office burglarized. The only thing consented to by them was that the thief be caught, and when they understood that a scheme was on foot, about which they were not consulted, to catch the thief that night, they interposed no objection.
    The correct doctrine is stated in Alexander v. State, 12 Texas, 540, 'as follows: “If the owner, in -order to detect a number of men in the act of stealing, directs a servant to appear to encourage the design, and lead them on until tire intent is completed, so long as he did not induce the original intent, but only provided for its discovery; after it was formed, the criminality of-the thieves'will not be destroyed/’ citing 3 Ohit. O. B,. Law, 925; 4 Blk. Oom.,- 230, note.
    The weight of authority is unquestionably against the idea that wrongdoers may be excused because of anybody’s permission to commit an offense! 1 Bish. Grim. 'Law (1892), secs. 258 and.,262; People v. McDonnell, 80 Cal. (1889),' 285 (293-5); People v. Hanselman, 76 Gal. (1888), 460; State 
      v. Jansen, 22 Kan. (1889), 498 (504): Thompson v. State, 18 Ind. (1862), 386,' 3S7; Holland v. Gom., 82 Pa. (1876), 306 (323); 1 McClain’s Crim. Law., sec. 118; People v. Mc-Gorcl, 76 Micb. (1889), 200 (205); Love v. People, 160 Ill. (1896), 501 (502); United States y. Whittier, 5 Dill., 35; People v. Greening, 102 Cal. (1894), 384 (387); State v. Stickney, 53 Kan. (1894), 208 (310); Dodge v. Brittain, Meigs (Tenn.), 84; State v. Snell, 22 Eeb. (1887), 481; People v. Morton, 4 Utah (1896), 407; Conner v. People, 18 Col., 373, reported witb notes in 25 L. B. A., 341.
    Argued orally by G. H. Alexander, for appellant, and by Monroe McGlurg, attorney-general, for appellee.
   Terral, J.,

delivered tbe opinion of tbe court.

Joshua Strait, a colored boy, was indicted in tbe circuit court of Lauderdale county for burglary in breaking and entering tbe law office of Etheridge & McBeath, witb intent to steal.

Etheridge & McBeath were attorneys at law at Meridian, Mississippi', and having a belief that their office bad been often entered by some person, and having a suspicion that tbe defendant was such person, one or both of tbe prosecutors requested Green Morton to trace up tbe matter. Strait was the office boy at a neighboring office, and bad tbe key thereto of bis master. Morton, in laying a snare for tbe defendant, pretended to him that he bad left a bundle in tbe officé of Etheridge & McBeath, and received from Strait tbe key used by him in bis employment, and witb it opened tbe office of Etheridge & McBeath and entered tbe same, and tbe defendant, Strait, also entered with him, and being immediately set upon, they were arrested, and tbe defendant, being indicted and convicted of burglary, appeals."

Green Morton, in endeavoring to entrap tbe defendant, and in getting from him tbe key witb which be opened tbe office of Etheridge & McBeath, and in leading the defendant into the office, was acting at the instance of the prosecutors, either as a decoy or as a detective, and in either case he was operating under the' license -of the owners, and could not have been guilty of an unlawful act, and because Morton was not guilty of burglary, the defendant could not be guilty of burglary in entering the office at the instance and by the act of Morton. Green Morton himself opened the door of the office of Eth-eridge & McBeath, and unless he is guilty of burglary as the principal felon, the defendant cannot be guilty of crime. At common law the actual doer of an illegal act amounting to felony was called a principal in the first degree, and another, being with him to aid or assist in the commission of the act, is denominated a principal in the second degree; and a principal in the second degree could only be guilty of the crime committed by the principal in the first degree. It is plain that Morton is not guilty of burglary, because he was acting at the instance of the prosecutors, and he was expected by the prosecutors to use his own judgment in luring the defendant into a trap to be set for him. Whar. Am. Or. Law, sec. 117; United States v. Libby, 1 Wood & Minot, 221.

In 1 McOlain’s Grim. Law, sec. 118, it is said: “The only question in the case of decoys is as to whether defendant has committed a criminal act. Of course, if he has joined with one who pretends to be a confederate, but in reality is acting as a detective, and therefore has no criminal intent, he will not be criminally liable for acts done by the detective, although present to aid and assist; for while such presence and aid would make him a confederate in the case of a real crime, it cannot render him guilty where no real crime is committed.. Thus it is held that if in burglary an officer or a servant, under the instructions of the owner, admits the intended burglar to the house, pretending to be in collusion with him, there is no burglary committed.”

Mírale, J., so ruled in Reg. v. Johnson, 1 Carr. & Marsh, 41 E. C. L. R., 123. Ten of the twelve judges of the Exchequer Chamber so ruled in Donnelly’s case, 1 Russell & Ryan, 310.

And this is the American doctrine. Love v. People, 160 Ill., 501; People v. McCord, 76 Mich., 200, 205; Connor v. People, 25 L. R. A., 341.

The defendant was lot into the office of the owners by a decoy operating at their instance, and, however reprehensible the act be morally, he is not guilty of burglary. His conviction was wrongful.

The verdict and judgment is set aside and reversed, and a new trial is awarded.  