
    (Second Circuit — Franklin Co., O., Cir’t Court,
    Jan. Term, 1900.)
    Before Summers, Wilson and Sullvian, JJ.
    BACKENSTOE v. STATE.
    
      Feigned accomplice to have wrongdoer detected — Not accessory before fact—
    A person who encourages or counsels persons about to commit a crime to do so in order that tiiey may be discovered and punished, is not an accessory before the fact, but merely a feigned accomplice, if in so doing he honestly intended that they should be discovered and punished.
    Error to the Court of Common Pleas of Franklin county.
    The plaintiff in error was indicted jointly with Frank 'Thompson and Ralph Little for burglary and larceny. He was tried separately, and convicted, and sentenced to one year in the penitentiary. A motion for a new trial was made and overruled, and a bill of exceptions taken containing all of the evidence.
    No exceptions were taken to the admission or rejection of evidence, or to the charge of the court, and the only question saved by the exception to the overruling of the motion :for a new trial is whether the verdict is against the weight •of the evidence and contrary to law.
    The case is almost without a precedent, and so strange does it seem upon the facts that Backenstoe could have been indicted and convicted, and sentenced, as to induce us to •doubt the evidence of our senses and to read the record a ■second time.
    From the evidence it appears that Thompson and Little, iboys of eighteen, went to the saloon of Backenstoe on the •evening of June 28th, 1899, and there, after having become to some extent under the influence of liquor, Thompson several times asked Backenstoe to loan him a gun, saying he wanted to turn a trick. Backenstoe chancing to meet two policemen whom he knew related the circumstances, and at their request pointed out the boys to one of them in a neighboring saloon; later, the officers having in the meantime changed their uniforms for citizens dress, Backenstoe, by arrangement with the officers, took a revolver that they furnished him, and in his saloon handed it to Thompson; about midnight the boys started out, and Backenstoe a few minutes later, upon investigation, learned that the officers had not noticed the boys leaving, and was informed by the officers that they would watch for the boys and arrest them upon their return.
    The boys walked some distance, and then broke into a residence. They were discovered, and in the confusion that followed dropped the revolver and escaped with a few articles of little value. Shortly after one o’clock in the morning they returned to Backenstoe’s, and the bar-keeper let them in and then called Backenstoe, who, without seeing the boys, went out and informed the officers that the boys were there, and then returned and went in where the boys were dividing the plunder. The officers were admitted and •arrested the boys. Subsequently the boys plead guilty and were sentenced to the Reform Farm; on the first trial of Backenstoe the jury disagreed; on the present trial the only witnesses in any way connecting Backenstoe with the crime were the two boys, whose testimony was subject not only to the suspicion which always attaches to that of accomplices, but in addition to that which would arise from the fact that the boys must have known that they had been entrapped by Backenstoe. This, however, may be of little importance in view of the fact that the only substantial difference in the ■testimony of the boys from that of Backenstoe is that Thompson testifies that Backenstoe suggested to him that they commit a burglary, and this is improbable if, as they testified, this was but the second time they were at his saloon.
    The police officers were called on behalf of the defendant and testified to the facts as herein narrated, and identified the revolver found at the place of the burglary as the one they had given Backenstoe to hand to the boys.
    It is not necessary to give the whole of the charge of the court,since the part quoted is not qualified by anything not given.
    The court among other things said: “No person has any immunity under the law, no immunity from punishment under the law; a police officer has none, or any other officer, no matter what the rank of the office held by him, or what his position may be, he has no right to violate the law, to violate it himself, or to procure anybody else to violate it, and no person has a right to violate it under the advice of an officer, and if he does it under the advice of an officer, that is certainly no defense. It is as much a crime to do what the law makes criminal under the advice of an officer, as where it is done without the advice of an officer. That makes no difference, never makes any difference.
    “If his purpose was to aid them in the commission of the cirme, so that the officers could catch them and punish them for it, he is guilty anyhow. If that was his purpose and intent, to aid them in the commission of the crime so they would be caught and punished for it, he would be guilty. But it is claimed on the part of the defense that his action was not to aid them in the commission of the crime; that these persons were in there; that Thompson asked for a gun, and the claim is that the defendant gave him a gun; that he got it from a policeman, and that he was told that it was not loaded, and that he gave it to them, gave it to Thompson, and that he was told, or understood, that the officers would follow these men, or watch them. The claim is that he did not give it to Thompson to aid him, or him and Little, in the commission of any crime. The burden is not upon the defendant to prove that phase of his case. You gentlemen will bear in mind constantly that the burden is on the state to prove that whatever he did, if he did anything to aid or abet in the commission of this crime, that be intended in what he did to aid and abet, to assist or encourage, to induce them to go out and commit a crime, unless that is proven, your verdict must be for the defendant, and it is not proven unless it is shown to your minds by the evidence that he íb guilty beyond a reasonable doubt.”
    At the close of the court’s charge the defendant requested that the following instruction be given: “When a person learns that a crime is about to be committed, and, instead of trying to prevent it, lays a trap to catch the offender, he does not thereby consent to the crime.”
    The court then said to the Jury: ‘‘I might say to you that it is the duty of an officer of the law, and not of'a citizen very often, to assist in bringing offenders to justice. No man should be condemned for that, rather commended, and a person may,no doubt, lay schemes to detect and interrupt and catch such person; but in order to do that, the law does not permit a man, to become a criminal himself. A man can not justify the commission of a crime upon the ground that he commits it for some good purpose. The law will not tolerate that. No doubt a person can lay a scheme to interrupt and catch a person who he knows or supposes is about to commit a crime. He may inform officers and lay schemes, but he should be careful not to commit a crime himself. He can not engage in the commission of a crime, encourage some one to do it, in order that the person may be brought to justice. He may scheme to detect a person; he may deceive the person and lay schemes to catch him and interrupt him and all that kind of thing so long as he does not violate the law himself.”
   Summers, J.

We have found but one case in which a feigned accomplice was convicted and the question in that manner presented, but there are many in which it is raised on the trial of the principal by objection to the testimony of the feigned accomplice on the ground that a conviction can not be had on the uncorroborated testimony of an accomplice.

The question was so raised in The State v. McKean, 36 Iowa, 343, where the defendant had been convicted of horse stealing. The trial court gave the following instructions which are approved by the supreme court: ‘‘Eighth. If you find from the evidence that the witness, Meeks, went into an arrangement with the defendant and others to steal the horse in question, and did assist in taking said horse, whether or not he is an accomplice in the crime if any has been committed, will depend whether, at the time he took the horse, he took it with felonious intent; that'is, with the intent to appropriate the horse to his own use and.to deprive the owner of the use thereof.

‘‘Ninth. If at the time of the taking he was actuated by or possessed of such felonious intent, he is then to be regarded as an accomplice; but on the other hand, if you are satisfied from the evidence, that Meeks intended from the beginning, to act the part of a detective to ferret out and make known the crime and secret frauds of the defendant and others, then he is not to be regarded as an accomplice. This question of whether Meeks was an accomplice or a detective is important, and must be by you determined, in view of the next instruction which I shall give you, It is a question of 'fact which you are to determine from the evidence.”

And then follows an instruction to the effect that if the jury find that Meeks was an accomplice, that then the defendant could not be convicted upon his uncorroborated testimony.

What is said in State v. Brownlee, 84 Iowa, 473, is to 'the contrary, but it is mere dictum.

In Commonwealth v. Baker 155 Mass., 287, it is held: ‘‘One who goes to a house alleged to be kept and maintained for purposes of illegal gaming, and engages in such gaming himself for the express purpose of appearing as a witness for the government against the proprietor, is not an accomplice. ”

To the same effect are, Com. v. Graves, 97 Mass., 114; Com. v. Downing, 4 Gray, 29; Com. v. Willard, 22 Pick. 476.

In People v. Farrell, 30 Cal. 316, a case of possession of counterfeit coin, it is held: ‘‘The rule that a defendant cannot be convicted of a criminal offense on the testimony of an accomplice, unless the same is corroborated, does not apply to a feigned accomplice.”

To the same effect are People v. Barric, 49 Cal. 342, and People v. Bolanger, 71 Cal. 17.

.In People v. Collins, 53 Cal. 185, Collins was convicted of burglary. The evidence showed that he had requested one Parnell to commit the burglary and to divide the money; that Parnell immediately informed the sheriff, who advised him to play the part of feigned accomplice; he did so, and after the money had been delivered to Collins, notified the sheriff and Collins was arrested with the money in his possession, and it was held: “That, inasmuch as Parnell alone entered the building, and did so without felonious intent, there was no burglary committed, and therefore Collins could not have been privy to a burglary,”

In the per curiam it is said: “If the act of Parnell amounted to burglary, the sheriffwho counseled and advised ' it was privy to the offense; but no one would seriously contend, on the foregoing facts, that the sheriff was guilty of burglary, The evidence for the prosecution showed that no burglary was committed by Parnell for the want of a felonious intent, and the defendant could not have been privy to a burglary unless one was committed ”

In Campbell v. Commonwealth 84 Pa. St., 187, (a Molly Maguire case) it is held: “A detective who joins a criminal organization for thepurpose of exposing it, and bringing criminals to punishment, and honestly carries out that design, is not an accessory before the fact, although he may have encouraged and counseled parties who were about to commit crime if in so doing he intended that they should be discovered and punished, and his testimony, therefore, is not to be treated as that of an infamous witness.”

In Commonwealth v. Hollister, 157 Pa. St. 13, it is held: “A person who joins others in the commission of a crime for the purpose of exposing it and bringing criminals to punishment, and honestly carries out that design, is not an accessory before the fact, although he may have encouraged and counseled parties who were about to commit crime, if in doing so he intended that they should be discovered and punished; and his testimony, therefore, is not to be treated as that of an infamous witness.”

In People v. Noelke 94 N. Y. 136, it is held that a person who purchases a lottery ticket in that state solely for the purpose of detecting and punishing the seller for a violation of the lottery law, is not an accomplice.

In Price v. The People, 109 Ill., 109, it is held: “First: On an indictment for burglary, for breaking and entering a dwelling house with intent to rob or steal, the intent with which the defendant entered the house is the gist of the charge, and if the proof does not show the felonious intent charged, no conviction can rightfully be had.

Emmett Tompkins and E. E. Tanner, for Plaintiff.

A. L. Thurman, for the State.

“Second: On the trial of several persons for burglary, where one claims that although he accompanied the others, and with them entered the house, he was acting .merely as a detective, to fasten guilt on his associates, if the evidence tending to prove this fact is sufficiently strong to raise a clearly well-founded doubt of his guilt, he ought to be acquitted. ’’

This is the only precedent we have found. Price was present and aided in committing the burglary, and was convicted. The judgment was reversed, and on the sole ground that the verdict was not sustained by the evidence.

In the case last cited there is a dissenting opinion in which it is said: “It would be to establish a most pernicious doctrine to hold that a person might participate in the commission of a felony,and obtain immunity from punishment on the ground that he was a mere detective or spy upon the conduct of others. ’ ’ The question of intent is one for the jury, and we do not think that in any such case the jury is likely ever to be misled, or that such a rule is likely ever to operate as an incentive to the commission of crime.

The judgment is reversed, the verdict set aside, and the case remanded to the court of common pleas for error in overruling the motion for new trial on the ground that the verdict is against the evidence and contrary to law.  