Appellants were separately charged and convicted of selling cigarettes to a minor (C. S., sec. 8363, as amended 1921 Sess. Laws, chap. 185, p. 385). They contend that the evidence is insufficient to sustain the verdict, in that it appears that they were entrapped by the sheriff into making the alleged sales under the belief that the minor was an adult. The minor was six feet and one inch tall, weighed 175 pounds and was seventeen years old. He accompanied the sheriff from Payette to Fruitland and New Plymouth, where he entered the places of business of appellants and purchased from each of them a package of cigarettes, paying therefor money given him by the sheriff.
To support his contention that the conviction cannot be sustained, counsel cite State v. Mantis, 32 Idaho 724,187 P. 268, and United States v. Healy, 202 Fed. 349. The Mantis case states what we believe to be the general rule relating to the law of entrapment, but it in nowise supports appellants. In that case a man was convicted "of attempting to induce a female to reside with him for immoral purposes," and it was necessary to prove an intent as well as an attempt. The "attempting" was all done by the female; and the evidence was clearly insufficient to sustain the conviction. The Healy case is against appellants, for the court said:
"If, however, the decoy is one whose appearance, or otherwise, conveys knowledge of his disability, or is sufficient to put the seller on inquiry, any sale made is voluntary, establishes guilt, and warrants conviction. For in such case the seller is either of guilty intent, or negligent ignorance or recklessness, which relieves the government's participation of any taint of fraudulent concealment or deceit."
In an instruction, to which no objection was made, the court told the jury, "that if you find from the evidence that the witness David J. Krost was a minor, as alleged, *Page 384 at the time of any alleged sale of cigarettes, but that any such sale of cigarettes to said David J. Krost was made by the defendant making the sale in good faith, and that such defendant had reason to believe and did believe David J. Krost to be of age, it is a good defense for any such defendant.
"Whether in this case any defendant did sell to a minor, and whether any defendant took reasonable care to find out whether said David J. Krost was a minor, and whether any defendant, in good faith, believed said Krost to be over the age of twenty-one years, are questions of fact to be determined by the jury in the case."
By its verdict, the jury said that the sales of cigarettes were made to a minor; that they were not made in good faith; and that appellants had no reason to believe that the minor was an adult. Does the fact that the boy made the purchases at the direction of the sheriff require that the conviction be set aside as a matter of public policy? We think not. The purchases were neither induced nor procured by the sheriff. Appellants were not lured into the commission of the offense. They were merely furnished an opportunity to either violate the law or decline to do so. There was no persuasion to sell, nor misrepresentation as to the boy's age. The boy went into the stores and asked to buy cigarettes. It is true that the particular sales would not have been made but for the act of the sheriff, but they were made in the usual course of business, freely and voluntarily. Appellants were willing offenders, willing to make the sales to one who, the jury said, they had no reason to believe was an adult. The appellants, and each of them, did everything necessary to constitute the offense. The fact that the sheriff caused the boy to enter the stores and offer to make the purchases does not prevent the sales from being criminal, nor necessitate setting aside the convictions. (State v. Mantis, supra; United States v. Healy,supra; Salt Lake City v. Robinson, 40 Utah, 448, 125 P. 657 (which is readily distinguishable from the more recent Utah case of State v. McCornish, 59 Utah, 58, 201 P. 637). See, also, note in 18 A.L.R., commencing on page 146. *Page 385
As to appellants' second contention we hold that the statute prohibits the sale of cigarettes to minors and that the minor to whom these sales were made is within the class contemplated by the statute.
Judgment affirmed.
Budge and Givens, JJ., concur.
Petition for rehearing denied.