The record-union., 1899-03-23
Is AGAINST PUBLIC POLICY.
ENCOURAGING MEN TO COM
NIT CRIME.
An Officers Zeal Must Not 20 TO
That Extent-New Trial Grant
ed M. G. Dandried.

Some months ago M. G. Dandried,
who keeps Cor did keep a Saloon ..
Thirtieth and streets, was suspsclFa
by the police of selling liquor Witnoue
a license. In order to entrap MIN oiii. :.
Ger NJ. A. Fisher induced a coupe OIL
men to go to the place and purchase
drinks, which they did. Dandrleo y do
arrested, convicted and fined @loV III
the City Justices Court
His counsel moved for a new trial on
the ground that Dandried was lmpfop-
erly convicted on the testimony OF men
who had been employed to induce rim
to violate the law. The motion was
denied and an appeal taken to the Su-
perior Court Judge Hart heard the
case, and yesterday he rendered his de-
cision, oVerruling the order OF the Jus
tees Court and granting new trial.
Following is his
DECISION IN FULL.
The defendant was tried in the City
Justice Court by jury for violating
Ordinance No. 430 of said city CT Sac
ramento, which relates to the regula-
ton of business, trades and professions,
and prescribing licenses for the manage
ment, operating and conducting of the
same. and also providing the penalty
for the violation of the provisions Of
said ordinance. That portion of said
ordinance which it is alleged in the
complaint the defendant violated relates
to licenses for the sale of intoxicating
liquors to be drank upon the premises
where the same are sold. The ordi-
nance prescribes a minimum penalty
of 500 and a maximum penalty of $500
1- D,er
exceeding one hundred days, or by
both such fine and Imprisonment.
The complaint charges that the de-
PENDANT committed the offense on the
- day of March, 1898. The jury re-
turned a verdict of guilty against the
defendant, and the defendant was fined
500. After the verdict and before the
judgment was pronounced, counsel for
the defendant moved for a new trial
upon the several statutory grounds. The
motion was denied and this appeal
follows.
Several points were presented and ar
gued to this court by counsel for the
defendant, involving reasons why the
case should be reversed and the defend
ant discharged, but there is but one
point, it seems to me, which deserves
any consideration and which is. in my
judgment, decisive of the case. Ac-
cording to the record as presented mere,
the evidence in the case showed that
Michael Fisher, police officer of the
city of Sacramento, having obtained in
formation that the defendant was sell
ing liquor at his place of business with
out a license. employed two men,
Brown and Monroe, to go to the defend
ants establishment and attempt to buy
from him some liquor. Fisher fur
nished Brown and Monroe with two
bits with which to purchase the whisky.
In accordance with this arrangement,
Brown and Monroe paid a visit to the
defendants place of business, which is
situated in the extreme eastern part Of
the city, and upon meeting him asked
the defendant if he would sell them
some liquor. Monroe and Brown each
testified that the defendant furnished
the liquor. took the money, which was
twenty-five cents, returning to the wit
nesses five cents in change This is
substantially all of the testimony in
the case.
Defendants counsel contend that
where an Individual is induced to COM
NIT an infraction of the law through
the solicitation Of an officer or agent
Of the Government, whose law is al
legged to have been violated, a convic :
ton thereof as a matter of public pol
icy at least, can not be sustained.
On the other hand, it was contended
by the prosecution that the testimony
of Brown and Monroe merely bore upon
one particular circumstance tending 10
establish the fact that the defendant
habitually engaged in the business of
selling liquor without license. ana
that act of itself did not alone consIi-
tute the commission of the offense.
I am inclined to concur in the view
taken by defendants counsel and to
disagree with that of the counsel for the
people. The complaint charges that
the offense was committed during the
month of March, 1898 The evidence
showed that there was but one occasion
during the month of March on which
the defendant is claimed to have sold
any liquor. This being true, the only
offense shown, if any offense at all, was
that developed by the testimony of
Brown and Monroe, who acted, accord
ing to their own testimony and the tes-
timony of police officer Fisher, as the
Representatives and agents of the lat
ter official
In the case of the people VS.. All Yum,
tried in this court some two years and
half ago before Hon. A C. Hinkson,
then presiding in Department Three of
this court, the defendant was accusa I'd
of selling liquor to an Indian, contrary
to statute of this State upon that
subject The jury, after listening to
the testimony, found the defendant
guilty.
The evidence in that case was to the
effect that police officer of the city,
having arrested an Indian for drunk
enness on the public streets of this city
one evening, on the next morning and
after the Indian had returned to a
state of sobriety. very closely ques-
toned the latter as to the place where
he had procured the liquor by which he
had become intoxicated. The Indian
informed the officer that he had pur-
chased it from a Chnarnan at GER