Page:Federal Reporter, 1st Series, Volume 10.djvu/111

BATSS V. VMTED STATES. 99 �293; to prosecutions for assanlts, which are not in themselves offences against the public peace: jBoa; V. TVoZtoto», 12 Cox, C. C. 180. �(2) When there are physical conditions of an oSence inconsistent with a trap, so that these conditions eannot exist wlien there is a trap, then the de- fendant must be acquitted. The most striking illustration of this e}tception is to be found in the case of burglary already noticed. There can be no pros- ecution for burglary in cases where the door of the house was opened by its owner to give the burglar entrance. �Whether, when the offence is the special product of the trap, the defendant can be convicted, depends upon the exelusiveness of the causal relationship between the ofEence and the trap. When the defendant was the passive tool of the entrapping party then there should be an acquittai. On the other hand, the defendant ought not to escape conviction in any case (with the exceptions above given) in which he knowingly committed the offence. The most freqent cases under this head are prosecutions for illicit sales of liquor. In an English trial in 1881 {Rex v. Titley, see London Law Times, July 30, 1881) a conviction of this class, when the sale was induced by the adroitness of a detective, was sustained, though it beeame subsequently the subject of much discussion in the house of commons. In Scotland {Blaikie v. Linton, 18 Scot- tish L. K. 583) a similar conviction in 1881 was set aside by the court of jus- ticiary on the ground that the offence was the product of the solicitation. But this can only hold good in cases in which the offeuder's action is not im- putable to his free agency. �2. Ineffectiveness of [nstrumekt. The ruling of Judge Dnimraond, that the fact that the pills sent " would not of themselves prevent conception" is no defence, is put on the ground that "the language of the statute is not that the article must necessarily procure abortion or prevent concep- tion, but that it is designed or intended to procure the one or prevent the other;" and he adds "that these pills were sent in answer to a letter asking for something that might have that effect, and they were sent with the state- ment that they were just what the writer wanted." It may, therefore, be well argued in this particular case that the defendant was estopped from maintaining that the pills were innocuous. But aside from the statute, and the peculiar shape the case took in consequence of the assertions of the de- fendant, there is little doubt that the decision of Judge Drummond may be fiupported on principle. The question, indeed, is one which will always con- tinue to agitate not only jurists but casuists. An offence is attempted with unsuitable instrujnents. Is this indictable? In Germany, after a contro- versy in which the ablest jurists have taken part, and after numerous treatises have beeu written on both sides, the high court of appeals (Lleichsgericht) has decided that an attempt to commit an offence with unsuitable means is indictable notwithstanding such unsuitability ; in other words, aile untaug- liche Versuchshandlungen sind strafbar. Entscheidungen des Eeichsgerichts, bd. 1, p. 439. It is true that this has by no means silenced the dispute which has for so long existed on this interesting topic ; and in the first number of the Zeitschrift fur die gesainmte Strafrechtswissensoliaft (1881) we have an elaborate and powerfui article by Dr. Geyer, an eminent writer on criminal law, controverting the decision of the court. But so far as the ruling goes to ��� �