tenses and thereby defrauded the accused is no defense.21 However, if the complaining witness has also subjected himself to a prosecution for a like offense, he also may be punished.22 In a case of uttering counterfeit money the fact that the complaining witness was a prostitute and received the counterfeit in payment of an illegal act is no defense.23 And in a case of larceny or embezzlement the fact that the party from whom the property was stolen or embezzled had himself stolen or embezzled it is no defense.24 A few courts, however, have held the contrary.25 This contrary view, however, is wrong upon principle and not in accord with the weight of authority.

§ 9. Effect of consent of person wronged. In a civil action, consent of the party injured is usually a defense. It was said in an English case that "whatever may be the effect of a consent in a suit between party and party, it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create a breach of the peace, so as to bar a criminal prosecution. Though a man may by his consent debar himself from his right to maintain a civil action, he can not thereby defeat proceedings instituted by the crown in the interests of the public for the maintenance of good order." So it was held that persons who had consented to fight each other, were each guilty of an assault on the other.20 Where one was tried for manslaughter caused by a collision on a football field, it was

21 People v. Watson, 75 Mich. 582, 42 N. W. 1005; Gilmore v. People, 87 Ill. App. 128, Derby's Cases 292; Reg. v. Hudson, 8 Cox Cr. C. 305.

22 Commonwealth v. Morrill, 8 Cush. (Mass.) 571. See also In re Cummins, 16 Colo. 451, 27 Pac. 887, 13 L. R. A. 752, 25 Am. St. 291. 28 Reg. v. 1 Cox Cr. C. 250. 24 Commonwealth v. Smith, 129

Mass. 104; Rex v. Beacall, 1 Car. & P. 454.

25 McCord v. People, 46 N. Y. 470 (in this case Justice Peckham gives an able dissenting opinion); State v. Crowley, 41 Wis. 271, 22 Am. Rep. 719.

26 Reg. v. Coney, 8 Q. B. Div. 534, Derby's Cases 267; Auge v. Woodmen, 173 N. Car. 33, 91 S. E. 586.

said that if accused was playing the game according to its rules, the jury might infer he was not guilty of a criminal intent, although no rules or practice of any game can make that lawful which is unlawful by the law of the land, and the law is that one shall not do that which is likely to cause another's death.27

Where a girl removed all her clothing to submit to a massage treatment, she did not thereby consent to indecent liberty taken with her by the healer.28

A married man suffering from a venereal disease who, without informing her of the disease, has intercourse with his wife, and infects her, is not criminally liable for the assault, notwithstanding the dastardly moral nature of the act.2 The consent of the woman was sufficient to render the act not an assault.

29

A taking by voluntary consent does not constitute larceny; but mere exposing property with the expectation that the accused will take it is not a consent in law.30

§ 10. Effect of entrapment.-As a general rule, entrapment of the accused, either by the injured party or by the public authorities, is no defense; and in order to catch suspected persons, a complete opportunity to commit crime may be designedly given with the law's sanction.31 Thus, the fact that a detective or other person buys intoxicating liquor with the view of prosecuting the vendor for selling it in violation of the law is no defense.32 Nor the fact that a

27 Reg. v. Bradshaw, 14 Cox Cr. C. 83, Derby's Cases 269.

28 Bartell v. State, 106 Wis. 342, 82 N. W. 142, Derby's Cases 271.

29 Reg. v. Clarence, 16 Cox Cr. C. 511, Derby's Cases 272.

30 Lowe v. State, 44 Fla. 449, 32 So. 956, 103 Am. St. 171, Derby's Cases 279.

31 Williams v. State, 55 Ga. 391; Tones v. State, 48 Tex. Cr. 363, 88

S. W. 217, 1 L. R. A. (N. S.) 1024, 122 Am. St. 759, Derby's Cases 283; State v. Tibbs, 109 Minn. 247, 123 N. W. 54, 25 L. R. A. (N. S.) 449; Commonwealth v. Hollister, 157 Pa. St. 13, 27 Atl. 386, 25 L. R. A. 349; State v. Smith, 152 N. Car. 798, 67 S. E. 508, 30 L. R. A. (N. S.) 946n.

32 People v. Murphy, 93 Mich. 41, 52 N. W. 1042.

postal inspector by the use of decoy letters detects a person engaged in sending obscene matter, or letters the mailing of which is forbidden, through the mails;33 nor the fact that a constable, with the view of arresting and prosecuting thieves, disguises himself, feigns drunkenness, lies down in an alley and remains passive while his pockets are being picked;34 nor the fact that the occupant of a dwelling-house, who suspects a person of intention to commit burglary, leaves the door unlocked and watches with an officer with the view of arresting the expected intruder;35 nor that an officer procures a key for another to take an impression and thereby enables him to break into a store room; .36 nor the fact that an officer, authorized to administer oaths, with the view of prosecuting the affiant for false swearing administers to him a false oath knowing at the time that the affiant's purpose is to obtain funds to which he knows he is not entitled;37 nor that a woman represents she wants an abortion performed, in order merely to entrap a physician.38

It is to be observed, however, that the entrapment must not extend beyond passive participation. In other words the accused must not be solicited or actively encouraged to commit the offense.39 In harmony with this view, the cases hold that acts, otherwise criminal, committed against property at the instigation and by the encouragement of a de

33 Price v. United States, 165 U. S. 311, 41 L. ed. 727, 17 Sup. Ct. 360; Grimm v. United States, 156 U. S. 604, 39 L. ed. 550, 15 Sup. Ct. 470; Kemp v. United States, 41 App. D. C. 539, 51 L. R. A. (N. S.) 825, and note on instigation or consent to crime for purpose of detecting criminal as a defense to prosecution.

34 People v. Hanselman, 76 Cal. 460, 18 Pac. 425, 9 Am. St. 238.

35 State v. Jansen, 22 Kans. 498; People v. Laird, 102 Mich. 135, 60 N. W. 457; State v. Abley, 109 Iowa

61, 80 N. W. 225, 46 L. R. A. 862, 77 Am. St. 520, Derby's Cases 280.

36 State v. Abley, 109 Iowa 61, 80 N. W. 225, 46 L. R. A. 862, 77 Am. St. 220, Derby's Cases 280.

37 Thompson v. State, 120 Ga. 132, 47 S. E. 566.

38 People v. Conrad, 102 App. Div. 566, 92 N. Y. S. 606, 19 N. Y. Cr. 259, Derby's Cases 286.

39 Love v. People, 160 I11. 501, 43 N. E. 710, 32 L. R. A. 139; Koscak v. State, 160 Wis. 255, 152 N. W. 181.

tective, who acts in pursuance of a plan previously arranged with the owner of the property, do not constitute a crime. Thus, where a person is employed by cattle owners to catch suspected thieves, and he, with their authority and consent, co-operates with the suspected parties in planning to take, and in taking, the cattle of such owners, no larceny is committed.40 For to constitute larceny the property must be taken without the owner's voluntary consent. The same is true of the crime of robbery.

But acquiescence on the part of railroad officials to the robbery of passengers on their trains, with the view of entrapping the guilty parties, is no defense.12 This is owing to the fact that such officials are incapable of giving authoritative consent to such an act. For a like reason it is no defense to a charge of stealing public records that the officer intrusted with their custody delivered them to the accused with the view of entrapping him.13 And where a person is charged with selling intoxicating liquor illegally it is no defense that the public authorities furnished the money to purchase it. On the other hand, public sentiment does not favor the entrapment of would-be criminals by such detective methods. And some courts are decidedly inclined to take the same view.45 As said in one case: "Human nature is frail enough at best, and requires no encouragement in wrongdoing. If we can not assist another and prevent him

40 State v. Hull, 33 Ore. 56, 54 Pac. 159, 72 Am. St. 694; Connor v. People, 18 Colo. 373, 33 Pac. 159, 25 L. R. A. 341n, 36 Am. St. 295.

41 State v. Waghalter, 177 Mo. 676, 76 S. W. 1028; State v. Adams, 115 N. Car. 775, 20 S. E. 722.

42 State v. West, 157 Mo. 309, 57 S. W. 1071.

43 People v. Mills, 178 N. Y. 274, 70 N. E. 786, 67 L. R. A. 131.

44 Evanston v. Myers, 172 Ill. 266, 50 N. E. 204; State v. Smith,

152 N. Car. 798, 67 S. E. 508, 30 L. R. A. (N. S.) 946n.

45 People v. McCord, 76 Mich. 200, 42 N. W. 1106; Love v. People, 160 I11. 501, 43 N. E. 710, 32 L. R. A. 139; State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. 360; Dalton v. State, 113 Ga. 1037, 39 S. E. 468; State v. Abley, 109 Iowa 61, 80 N. W. 225, 46 L. R. A. 862, 77 Am. St. 520, Derby's Cases 280; People v. Mills, 178 N. Y. 274, 70 N. E. 786, 67 L. R. A. 131.

from violating the laws of the land, we at least should abstain from any active efforts in the way of leading him into temptation."46 Thus, where persons are desirous of prosecuting criminally a certain public official, and without any previous solicitation on his part they co-operate with the public authorities and lead him to accept a bribe, the accused should be acquitted.47 This view, although the better one, is not supported by the weight of authority.48 The adoption of devices to entrap criminals is legitimate and proper, provided they do not constitute active invitations to commit the acts.49 It has been held that where a private detective incites another party to commit larceny that he himself is guilty of the crime.50

§ 11. Effect of repentance and withdrawal from the act.— Where two persons conspire to commit a crime and one of them repents and withdraws before the commission of the act he is not liable for the commission of the crime by the other, provided he informs the other beforehand of his intention to withdraw. This information may be conveyed to the other party either by words or acts. Moreover, if the party who withdraws does acts which naturally should inform the other party of his intention, but which do not, such acts are proper for the consideration of the jury in determining the relation of the party who withdraws to the crime subsequently committed.51

§ 12. An act or omission to constitute a crime must be so declared by law and must be contrary to law when committed. The mere fact that an act or omission is sinful, or morally wrong, does not make it a crime. To be a crime it

46 Saunders v. People, 38 Mich. 218; Sam Yick v. United States, 240 Fed. 60, 153 C. C. A. 96.

47 State v. Dudoussat, 47 La. Ann. 977, 17 So. 685; People v. Liphardt, 105 Mich. 80, 62 N. W. 1022

48 People v. Liphardt, 105 Mich. 80, 62 N. W. 1022.

49 Clark & M. Law of Crimes (2d ed.) 227.

50 Slaughter v. State, 113 Ga. 284. 38 S. E. 854, 84 Am. St. 242.

51 State v. Allen, 47 Conn. 121.