are clearly unsound, and are not supported by authority."

192

IX. CONTRIBUTORY NEGLIGENCE OF PER

SON INJURED.

158. In General.-Since a crime is punished because of the wrong and injury to the public, and not to redress the individual, contributory negli gence on the part of the person injured by a crime is generally no defense.

In civil actions to recover damages for personal injuries or death resulting from the wrongful act or omission of another, the general rule is that there can be no recovery

and may have had no right to do business in the state. Com. v. Shober, 3 Pa. Super. Ct. 554.

191 Reg. V. Cas. 158.

1 Cox, C. C. 250, Beale's

192 In New York, where an indictment charged an officer with obtaining property by false pretenses, the alleged false pretenses being that he had a warrant for the arrest of the prosecutor, it was held that, as the property was voluntarily surrendered as an inducement to an officer to violate the law, that is, to refrain from executing a warrant,-the indictment could not be sustained. McCord v. People, 46 N. Y. 470, Beale's Cas. 162, Peckham, J., dissented. See, also, People v. Stetson, 4 Barb. (N. Y.) 151.

And in a Wisconsin case, where the charge was conspiracy on the part of several defendants to defraud the prosecutor of his money, and the evi

if the person injured or killed was guilty of contributory negligence. This rule, however, can have little application in criminal prosecutions, where the proceeding is by the state to punish the wrongdoer for his violation of the law. On a prosecution for manslaughter by negligence, the defendant is punished because of his negligence, and to deter others, and it is no defense, therefore, that the person killed was guilty of negligence contributing to his death, even though he would not have been killed if he had used due care.193 And on a prosecution for murder or manslaughter it is no defense that the deceased might have recovered from the injury

dence showed that the conspiracy was in connection with an unlawful enterprise, in which the prosecutor himself was taking part, it was held that a conviction could not be sustained. State

v. Crowley, 41 Wis. 271, 22 Am. Rep. 719.

The English cases-Reg. v. Hunt, 8 Car. & P. 642, and Rex v. Stratton, 1 Camp. 549, note, Beale's Cas. 157-cited in support of this view do not support it. See the opinion of Judge Colt in Com. v. Smith, 129 Mass. 104.

193 Reg. v. Longbottom, 3 Cox, C. C. 439; Reg. v. Swindall, 2 Car. & K. 230, Beale's Cas. 167; Belk v. People, 125 Ill. 584; Crum v. State, 64 Miss. 1, 60 Am. Rep. 44; post, § 264.

if he had submitted to a surgical operation, or used due care.194 So, by the weight of authority, on an indictment under a statute for obtaining property by false pretenses, it is no defense that the victim was credulous and negligent, and that he would not have been cheated if he had used due

care.

195

An act may be such, however, that public policy does not require its punishment, where the injury was due largely to the negligence of the person injured. Thus, at common law it was considered that public policy did not require the punishment of persons for obtaining property by mere false representations or lies.196

X. CONTRIBUTORY

ACTS OR NEGLIGENCE

OF THIRD PERSONS.

159. In General.—If an injury is caused by the act or neglect of a person under such circumstances as to render him guilty of a crime, he is none the less responsible because of the contributing act or neglect of a third person.

This rule has frequently been applied in cases of homicide. If a person's act is a di

194 Rex v. Rew, J. Kelyng, 26, Beale's Cas. 163; Reg. v. Holland, 2 Mood. & R. 351, Beale's Cas. 164; post, § 237.

195 Post, § 366. 196 Post, § 351.

rect cause of another's death, he is responsible therefor, notwithstanding the wrongful act of a third person may have contributed to cause the death. If both are guilty, both should be punished. The guilt of one cannot exempt the other.197 The same rule applies where one's neglect of duty causes another's death. He cannot escape responsibility by showing that the death was also due to neglect of duty on the part of a third person. 198 Nor, as a rule, can a man escape responsibility for another's death by showing negligence of a physician in treating the deceased.199

200

This rule does not apply where the injury or death was not due at all to the act or neglect of the accused, but solely to the intervening act of a third person. And if an injury is caused by the act of one of several persons, not acting in concert, and it cannot be shown which one of them did the act,

197 Reg. v. Swindall, 2 Car. & K. 230, Beale's Cas. 167; post, § 264.

198 Reg. v. Haines, 2 Car. & K. 368, Beale's Cas. 170; post, § 265.

199 Reg. v. Davis, 15 Cox, C. C. 174, Beale's Cas. 171; post, § 237 (g) (2).

200 Post, § 237(a).

neither can be convicted, though it is clear that one of them is guilty.201

XI. ENTRAPMENT.

160. In General. That a man was entrapped in the commission of a crime is no defense

1. Unless the circumstances show consent on part of the person injured, and want of consent is an essential element of the crime.

2. Or, perhaps, unless the commission of the act was induced by active co-operation and instigation on the part of the public authorities.

Mere Entrapment.—If a man is suspected of an intention to commit a crime, neither the individual against whom his act is to be directed nor the public authorities are bound to take steps to prevent its commission. They may set a trap for the suspect, and, if he commits the crime, and is indicted, it will ordinarily be no defense that he was entrapped.

Thus, one who steals or embezzles another's goods or money is none the less guilty because the other knew of his purpose, and left the goods or money exposed, in order to entrap

201 Rex. v. Richardson, 1 Leach, C. C. 387, Beale's Cas. 166; People v. Woody, 45 Cal. 289.