The court charged: “ That the special agents of the Commissioner of Excise were in the performance of their duties prescribed by statute and should not be treated by the court or by the jurors as private detectives or with' the suspicion that they are associated with mere spotters, paid informers and those that are given compensation depending upon certain results being obtained.” Plaintiff’s counsel then asked the court to-charge: “ That it is not unlawful for special agents of the Commissioner of Excise to purchase or offer to purchase liquors during hours when it is unlawful to sell such liquors.” The court declined except as covered by the charge already made, and then charged that it is unlawful for a man to sell during those hours. It also charged, at the defendant’s request: “ The relation of special agents to the case and their interest or prejudice therein, if any, should be left for the consideration of the jury on the facts appearing in each particular case.”
The prevailing opinion favors a reversal for the refusal to charge the above request. If the verdict is not justified by the evidence, *86it should be reversed for that reason. The court should not reverse upon a ground that has no substantial merit. Whether it was lawful or unlawful for the agents to solicit and obtain a drink of the defendant was entirely immaterial. It is splitting hairs to say that whether the act was technically lawful or unlawful might affect the credit to be given to the special agents. They and their actions were before the jury. The court charged that in doing what they did they were in the performance of a duty prescribed by the statute. It is impossible to state in stronger terms that their acts were not censurable. If the request'had been charged it could have presented them in no more favorable light. The request fairly means ■that a person who is a special agent may obtain liquor to drink from one who is committing a crime in selling it to him, and that the agent’s acts are not unlawful. The request is not limited to the acts of the agent in good faith, or to the acts done by him. in obtaining evidence or in the performance of his duties, and on any theory was, therefore, properly refused. The plaintiff suffered no harm therefrom. An act may be unlawful which is not punishable criminally. Many immoral and improper acts are not punishable as crimes, but a court. cannot charge a jury that the commission of suclf acts is lawful. Section 29 of _ the Penal Code, then in force, provided, among other things: “ A person who directly or indirectly counsels, commands, induces or procures another to commit a crime is a principal.”
I favor an affirmance of the judgment.
Chester, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event. '