People v. . Mills , 178 N.Y. 274 ( 1904 )

I concur in the result reached by Judge O'BRIEN.

It is argued that the error in the reasoning of counsel for the defendant consists in assuming that the district attorney and his detective represented the state of New York in the scheme devised in the district attorney's office to entrap the defendant. I deem this the crucial point in the case. The district attorney and his detective undoubtedly acted upon the theory that they were representing the state and doing it a great service in bringing this defendant into a situation that would result in conviction, and, as they supposed, merited punishment. This was an unfortunate error of judgment.

It is a violent assumption, under the circumstances, that the district attorney and his detective were acting as private citizens and the state was not bound in any way by what they did. The state as a legal entity can only be represented by officers duly authorized to exercise certain of its powers resting in its absolute sovereignty.

In the case at bar, according to the testimony of the People's witnesses, the district attorney was advised that the defendant had expressed the desire to one of these witnesses to bribe an assistant district attorney to withdraw, misplace or lose the six indictments against Flower, or go into court and oppose a motion to quash the indictments in such a manner as to permit it to succeed.

This wicked purpose to bribe an official, existing in the mind of the defendant and communicated to a man whom he supposed was his friend, represents his extreme position at the time the district attorney was advised that one of his assistants might be improperly approached. No crime had been committed or attempted.

It will be observed that according to the People's witnesses, the intention lurking in the defendant's mind was bribery. He did not contemplate getting possession of the indictments himself, his idea being that the assistant district attorney, if capable of being bribed, might lose or misplace them, or defend in a half-hearted manner a motion made to quash them.

At this juncture the scheme was devised in the district attorney's office of allowing one of its detectives to place himself in communication with the defendant and assure him that he sustained such relations to the district attorney's office and assistant district attorney as would serve his purpose. This plan was carried out and resulted in leading the defendant into the supposed commission of two entirely distinct crimes, to wit: (1) An attempt to commit the crime of willfully, etc., removing, etc., a public document, i.e., certain indictments, in violation of section 94 of the Penal Code; (2) the crime of attempted grand larceny in the second degree by attempting to steal the aforesaid indictments.

This was not a scheme or device to detect crime already committed, wherein secrecy and deception are often resorted to in order to bring the guilty to punishment, but it was a plan to entrap the defendant, who, up to that time, had committed no crime whatever, but was planning in his own mind a wicked scheme to bribe an assistant district attorney.

In order to carry out the scheme of the district attorney it required the exercise of the great power and discretion conferred upon him by law. The indictments in question were on file in the clerk's office, and no court or officer had the power under the law to remove them for the purposes contemplated by this scheme. (Code of Civil Procedure, § 866.) This section permits records to be brought into court in the custody of a clerk when necessary, and when they are required at any other place they may be removed by order of the court, specifying that the production of the original instead of the transcript is necessary.

The district attorney obtained this order of the court and secured the possession of the indictments in question, giving his official receipt therefor. Nevertheless, this defendant is indicted for attempting to remove filed documents from a public office and attempting to steal the same. The indictments were removed from the files of a public office by the district attorney and were in his official custody and control every moment of time until they were returned to the proper custodian and the receipt given for the same taken up.

The farce enacted in the saloon where this defendant was surrounded by the officers of the law shocks the sense of justice, and if the state disapproves this mode of procedure it should renounce its unsavory fruits, which include two thousand dollars, more or less.

In order to reach the conclusion that the district attorney did not represent the state in devising and carrying out this scheme, we are compelled to regard him merely as the agent of the state, exceeding his authority in the premises.

I am of opinion that this familiar principle of the law of agency has no application to this case. It is essential that the sovereignty of the state should be duly represented by its officials and there is no valid reason why it should not be bound by the action of the district attorney when he commits a grave error of judgment. The argument that the district attorney and his detective did not represent the state in this prosecution permits the inference that if they did this conviction could not stand.

It is contrary to public policy and sound reason, when a defendant is entrapped by the district attorney's office into the commission of a crime he did not originally contemplate, that the state should be able to say it will treat the alleged criminal precisely as if the crime for which he was indicted originated in his own wicked intention, unaided by the officials who claim to represent it and who deliberately induced him to act.

In the case of Love v. People (160 Ill. 501), cited by defendant's counsel, the court held: "Burglary is not committed by those assisting a detective in entering a building and taking money from a safe in pursuance of a previously arranged plan between him and the owner with the sole intent of entrapping the others into the apparent commission of a crime. Acts otherwise criminal done by a party against property at the instigation and by the encouragement of a detective, who acts in pursuance of a plan previously arranged with the owner of the property, do not constitute a crime."

Numerous cases laying down this same principle of law are cited from various states.

A sound public policy requires that the state of New York should be estopped, as is a private individual, who seeks to induce a person by scheme or device to commit a crime.

It well comports with the dignity of the state to say that it repudiates this action of its officials and permits this defendant, although unworthy, to go free, because he stands convicted of a crime which he never would have attempted and could not have committed save by the assistance of those who on this occasion, however proper their motives, have misrepresented it.

I vote for reversal.

PARKER, Ch. J., HAIGHT, CULLEN and WERNER, JJ., concur with VANN, J.; O'BRIEN and BARTLETT, JJ., read dissenting opinions.

Judgment of conviction affirmed.