I dissent. As I read this record the State of Montana violated its own Criminal Code and by that violation brought about the commission of the offense for which the defendant Parr is now punished by the State of Montana.
The naked facts before us are that the chief probation officer and the county attorney of Fergus County took the boy Jerry Gallagher, then fifteen years of age, from the juvenile department of the county jail where he was lodged, and with an inspector for the state liquor board went to Grass Range, Montana, where the probation officer gave the boy a ten dollar bill and told him to go into the defendant’s saloon and buy a bottle of whiskey. This purchase the boy made of the defendant, as is the testimony of the county attorney and the inspector who *184witnessed the transaction through the tavern window. The boy himself was not a witness and accordingly did not testify at the trial.
Wholly apart from any crime of which Parr may be guilty this case presents two other aspects which I think the majority opinion ignores. The one is that the officers of the law themselves (1) caused the boy Gallagher while in their custody to go into the defendant’s saloon where spirituous or intoxicating liquors were sold, and (2) by his purchase there permitted him to patronize that saloon, both in violation of R.C.M. 1947, section 10-617. At this point this record finds no counterpart in the decisions of this court heretofore.
The other aspect of this appeal, which I think the majority has too lightly passed over, is that by their own violation of the statutes of the state the officers of the state themselves induced Parr to offend against the law of the state by his sale, as they say, to a minor in violation of R.C.M. 1947, sections 4-413 and 94-35-106, as amended.
I agree with the majority opinion that the state was not required to produce the minor as a witness upon Parr’s trial. But by his absence the state’s case was not strengthened.
Parenthetically I think a fifteen-year old boy should be about better business than purchasing whiskey that a prosecution may follow. It is no answer at this point for the state to say that the boy’s mother consented that he take the part he did in this affair. Faced as she was by “the law” with her son in jail her consent was not to be withheld.
But if the case were otherwise, neither the mother’s consent nor the participation and approval of the officers could lawfully sanction Jerry Gallagher’s visit to Parr’s tavern and his purchase there of a fifth of Seagram’s Seven Crown whiskey; for the visit and the purchase, I repeat, even at the instigation of the officers were both contrary to section 10-617, supra, and therefore forbidden without exception. That statute denies anyone the right to send a minor upon such a mission. The *185state’s case then is that by its own criminal act the defendant has been persuaded himself to break the law.
Here I think Mr. Justice Brandéis, late of the Supreme Court ■of the United States, has shown the way by his dissent in Casey v. United States, 276 U.S. 413, 421-425, 48 S. Ct. 373, 72 L.Ed. 632, with whom Mr. Justice Butler joined to this effect, 276 U.S. 423, 48 S. Ct. 376:
“* * * The obstacle to the prosecution lies in the fact that the alleged crime was instigated by officers of the government; that the act for which the government seeks to punish the defendant is the fruit of their criminal conspiracy to induce its commission. ’ ’
If Parr sold whiskey to the boy Gallagher, then as Mr. Justice Brandéis said further, 276 U.S. 423, 424, 48 S. Ct. 376,
“* * * it is because he yielded to the temptation presented by the officers. Their conduct is not a defense to him. For no officer of the government has power to authorize the violation of an act of Congress, and no conduct of an officer can excuse the violation. But it does not follow that the court must suffer a detective-made criminal to be punished. To permit that would be tantamount to a ratification by the government of the officers’ unauthorized and unjustifiable conduct.”
As did the defendant Casey, so the defendant Parr “denied every material fact testified to by witnesses for the prosecution and supported his oath by other evidence.” See 276 U.S. at page 424, 48 S. Ct. at page 376.
Accordingly, I would vacate this conviction and dismiss this information for the reasons which Mr. Justice Brendeis summarized thus in the Casey case, 276 U.S. 425, 48 S. Ct. 376:
‘ ‘ * * * *This prosecution should be stopped, not because some right of Casey’s has been denied, but in order to protect the government. To protect it from illegal conduct of its officers. To preserve the purity of its courts.”
I do not know of any opinion written in this court which holds to the contrary of my position here. But if such has not been the view of this bench heretofore, I think the opportunity is *186now at hand to bring the law into line with a fundamental concept of natural justice. Compare the reasoning of Mr. Justice Roberts spoken for himself and for Mr. Justice Brandéis and Mr. Justice Stone as well in Sorrells v. United States, 287 U.S. 435, 453-459, 53 S. Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249, citing O’Brien v. United States, 7 Cir., 51 F. (2d) 674.
I would reverse and dismiss.