Page:Federal Reporter, 1st Series, Volume 10.djvu/110

88 attract his attention, without surrendering my possession of it, then the "trap" is no defence. The same distinction is applicable to the opening of a door so as to let in a burglar. The burglar, it is true, cannot be charged with "breaking" a door which is opened for him to get in. It is otherwise, however, as to invitations held out as decoys by one of the inmates of the house, or as to masks in the way of apparent; defencelessness, or as to the leaving open of outer doors, provided this does not leave the main entrance open, Rex V. Johnson, G. & M. 218; Allen v. State, 40 Ala. 334. Such, also, is the rule with regard to counterfeit money. A policeman, by pretending to be an accomplice,may obtain access to a chamber where counterfeiting instruments are collected; but this does not prevent a conviction being rendered on his testimony. Wills, Circum. Ev. 117, 118. The guilty party may be induced by a trap to offer the counterfeit coin, but this does not make the offering the counterfeit coin any the less indictable. Rex v. Holden, R. R. 154; 2 Taunt 334. Nuw, does the fact that a detective attends unlawful meetings for the purpose of afterwards disclosing their secrets and becoming a witness against the wrong-doers make him an accomplice. Rex v. Bernard, 1 F. & F. 240 Rex v. Mullins, 3 Cox, G. G. 526; Com. v. Downing, 4 Gray, 29; Com. v. Wood, 11 Gray, 86; Com. v. Cohen, 127 Mass. 282; Campbell v. Com. 84 Pa. St. 187; State v. McKean, 36 Iowa, 343; People v. Farrell, 30 Cal. 316; People v. Barric, 49 Cal. 342; Williams v. State, 55 Ga. 391; Wright v, State, 7 Tex Ap.574.

One of the most nefarious and infamous conspiracies ever known in this country—that of the "Molly Maguires," in 1876, to coerce by assassination the coal proprietors of the Pennsylvania anthracite region—was exploded, and the chief perpetrators brought to justice by the sagacity and courage of a detective who attended the meetings of the conspirators and thus became possessed not only of their plans for the future but of their exploits in the past. The fact is, there is no crime that is not committed under the influences of some sort of decoy; and to acquit in all cases where the offender is incited to the crime by some instigation of this kind would leave few cases in which there could be a conviction. If the decoy is not intentional it may act by the way of negligence; and if an intentional decoy is a ground for defence so should be a negligent decoy. But it is now well settled that contributory negligence, unless breaking the causal relation between the offender and the offence, is no defence. Rex v. Keio, 12 Cox, G. G. 355; Rex v. Forbes, 7 C. & P. 224; Reg v. Parish, 8 C. & P. 94; Rex v. Beard, Id. 143.

The only exceptions known to the principle before us exist (1) in cases in which to the offence it is essential that it should be "against the will " of the party injured" and (2) in cases in which the offence consists in certain physical conditions which cannat exist if a trap be laid.

(1) When it is a condition to an offence that it should be " against the will " of the party injured, then there must be an acquittal should it appear that such party invited the defendant to the commission of the offence. This is the case with regard to prosecutions for rape: Reg v. Fletcher, Bell, 63; 8 Cox, C. C. 131; Com. v. McDonald, 110 Mass. 405; Brown v. People, 36 Mich. 203; State v. Burgdor, 53 Mo. 65; Walter v. State, 40 Ala. 325; to prosecutions for highway robbery: Rex v. McDaniel, Fost. 121, 128; Long v. State, 12 Ga,