The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-07-06
The Law OF Traps and Decoys.

The recent remarks of Secretary TAFT
on the safeguards surrounding criminals
and the resulting delay and difficulty in
sustaining convictions are met to a de-
gree by three decisions in this State
within year, two by the Court OF APP
peals and the third by the Appellate
Division for this department. These
cases settle, for the time being at least,
the law of New York that a person may
be convicted of an attempt to commit
q crime, under Section "a OF the Penal
Code, even when tricked into the trans
action by a prosecuting officer.
Section "a defines an attempt as IAN
act done with intent to commit crime,
and tending but failing TO effect its COM
mission" Section $50 declares the pun
ishnent for an attempt to be not more
than twenty-five years if the crime at
tempted is punishable by death or by
Imprisonment for life, and by a maxi
mum term or fine of half the largest
punishment in any other case.
Perhaps the most celebrated case OF the
three was People Us. GEORGE Z. MILLS,
reported in l7s n. Y. 274, in which DR..
RICHARD c. FLOWER and various Next
can mining promoters were involved.
In that case an endeavor was made to
bride Mr. GARvAS of the District Attor-
news office to suspend the prosecu-
ton OF DR.. FLOWER. An interview was
arranged between Detective Sergeant
BRINDLEY and MILLS, with the result
that BRINDLEY delivered to MILLS
various indictments against DR.. FLOWER
in return for 1900 BRINDLEy then ar
rested MILLS, who was indicted for at
tempted grand larceny in the second
degree and also for an attempt to remove
and destroy a public record. The con-
viction on both counts was sustained
through all the courts,
The conviction was attacked on the
ground that as Mills took the papers
with the consent oEthe District Attorney
the requisite criminal intent was lacking.
Judge VANN, however, dismissed this
contention in that "the records were the
property of the State, not of the District
Attorney. and that the latter could not
lawfully give them away or permit them
to be taken by thu defendant. Purity of
intention only contd prevent the action
Of the District Attorney from being a
crime on his part: This istrue also as to
the detective for il either had In fact
intended that the defendant should per-
manently remove the indictments
he would have come within the statute
MILLS, having coupled his felonious in
tent with an overt act which fell short OF
success, was guilty of an attempt Judge
VANN concludes his opinion as follows:
while the courts neither adopt nor approve the
action OF the oficcrs which they hold unauthor.
ICED still they should not hesitate to punish the
crime actually committed by the defendant. 1t Is
their duty TO protcc, the innocent and punish the
guilty. We are asked to protect the defendant not
because he Is innocent but because jealous public
ofacer exceeded his powers snd he+u out bait.
The courts do hook TO see who held out the bait
but to sec who took It,"
The Mills decision was followed in the
recent case of People Us. CONRAD, decided
last month. CONRAD was a physician
whose questionable practises aroused
the attention Of the County Medical
Society. The officers of that society in
duced CONRAD to perform a criminal
operation on woman. He was arrested
when about to operate. The courts in
convioting him went a step further, be-
cause in this case the idea was suggested
to CONRAD, whereas in tho Mills case
MILLS was the instigator But the APP
pellate Division, in the language of JUS
tice HATCH whose opinion was followed
by the Court Of Appeals without COM
ment, held the culprit TO the conse-
quences of his attempted act, saying:
He was not a passive instrument In the hands
Of the en,rapping parties. He did the act with
which he was charged voluntarily, with full knowl-
edge Of the subject and OF the consequences which
would now thorefrom. Under such circumstances
setting trap By which he was caught Is not
defense"
The same Justice proceeds to quot1