People v. Zimbrolt

SCHAUER, J.,

Concurring. — I concur. While the defendant thought he was selling to the witness Bottini “a label . . . bearing . . . the trade name of another” to be used by the witness “for the purpose of disposing” of an article “other than that which such . . . label ... is connected with by the owner of such . . . trade name”, such witness in reality was a pseudo, not an actual, bootlegger. The purpose of his possession of the labels acquired from defendant was not to dispose of any article but to entrap defendant; the use he contemplated for such labels was as evidence of some crime, not to fraudulently sell a spurious article falsely marked thereby. Since neither Bottini’s possession nor contemplated use was for a purpose within the proscription of the statute, defendant cannot, in aiding him thereto, be said to have abetted a crime. (See sees. 31 and 659, Pen. Code.) As defendant’s own possession of such labels, as well as any personal use therefor, was likewise innocuous to the statute he is not guilty as charged.