the New York corporation, it would have gone into the same treasury and have been disbursed in the same manner and by the same people."

In the reported case (VAUGHAN v. NASHVILLE, C. &. ST. L. R. Co. ante, 124) the court explicitly and intentionally left undecided the question raised by counsel for the railroad, of the constitutionality of legislation designed to impose organization taxes upon foreign corporations engaged in interstate commerce, which sought to become domesticated or naturalized in the legislating state, pursuant to laws enacted long after they had been admitted to do business in such states, and had conformed fully with all the statutes thereof entitling them to do so.

VIII. Conclusion.

:

A domesticated foreign corporation should be viewed as a body corporate originating in one state, which another state has by appropriate action allowed to become established within its borders to carry on its corporate operations, and to which the latter state has granted sundry powers, rights, and privileges not usually exercised and enjoyed by foreign corporations merely licensed to do business in the state, and short of those usually belonging to original domestic corporations.

Whether a legislative act respecting a foreign corporation authorized to do business in the state constitutes an adoption, domestication, or naturalization of it, or a mere permission or license to function within the state, is ever a question of the construction and interpretation of the enabling statute, and of the intention and purpose of the legislature in enacting it. 14a C. J. 1231, § 3935.

A statute whose only effect is to recognize the legal existence of a foreign corporation, and to allow it to exercise its powers and to function in the enacting state, does not make it a domestic corporation, but merely licenses it to do business in the domestic territory, leaving its status as a foreign corporation unchanged, and

its domicil and citizenship in the state of its origin. 14a C. J. 1231, § 3935.

It is a generally accepted doctrine that a corporation chartered by different states under the same name, clothed with the same powers, for the same purposes, meant to accomplish the same results, and bound to discharge the same duties in each state, is a separate and distinct body in each. 7 R. C. L. title Corp. subd. VII. § 111, p. 140; 14a C. J. 1231, § 3935.

The authorities are in accord in holding that, to complete the domestication of a foreign corporation, mutuality of action by the state and the corporation is requisite. There must be, on the part of the state, legislation looking to that result, and on the part of the corporation an acceptance of, or assent to, the status. See 14a C. J. 1232, § 3936.

In the reported case (VAUGHAN V. NASHVILLE, C. & ST. L. R. Co. ante, 124) an organization tax imposed by statute on every stock corporation incorporated under Kentucky laws. was held not chargeable to a foreign railroad company, upon its applying for domestic incorporation or naturalization, where it had been chartered in its home state, and had operated in Kentucky before the adoption of the state Constitution forbidding foreign railroads which did, or purposed doing, business in the state, from exercising the right of eminent domain or acquiring real estate for rights of way, stations, or other uses, without first incorporating in Kentucky, and where also the applicant had many years before complied with the Kentucky statutes entitling it to construct, maintain, and operate its road as it had done. The reasons the court gave for its conclusion were that the legislature never intended to impose the organization tax in such a case, and that in requiring domestication of existing roads that body had no intention to create new corporations, but only to clothe old ones with sundry attributes and powers. It is logical to say that if the statute relied upon to sustain the claim of the state to recover an organization

Sanborn, Circuit Judge, delivered the opinion of the court:

Clarence O. Butts, the defendant below, was indicted, convicted, and sentenced for a violation of the Antinarcotic Act (Comp. Stat. §§ 6287g, 6287h, 4 Fed. Stat. Anno. 2d ed. pp. 177, 178), in that he, being a person who dealt in, sold, and dispensed narcotic drugs, without registering with the collector of internal revenue or paying the special tax imposed upon such dealers by this act, sold to H. Rudolph three fourths of an ounce of morphine sulphate, of the value of $190, about April 7, 1920.

Counsel for the defendant below have specified many alleged errors in the trial of this cause, one of the most serious of which is that the trial court denied a request of counsel for the defendant to instruct the jury that the defendant claimed that he was entrapped into delivering to Rudolph the morphine in question by the instigation of the government agents; that, had it not been for the importunities and false statements made by Rudolph, pursuant to the directions of the government agents, who started out admittedly for the purpose of entrapping the defendant into the commission of the offense charged against him, he would not have conceived or committed it; and that if the jury believed from the evidence that the defendant was induced by the importunities of Rudolph, acting under the orders and in conjunction with the government agents, to violate the law, and that, through the instigation of these men, the defendant was induced to sell or deliver to Rudolph the morphine, and that he would not otherwise have violated the law, they ought to return a verdict of not guilty. At the close of the trial, when this request was made, these facts had been established by the evidence:

The defendant, during fourteen years prior to April 6, 1920, had suffered eighteen operations for tuberculosis of the bones, and he

had been and was addicted to the use of morphine when he was in pain. He had never sold or dealt in the article prior to the transaction of about the 7th of April, 1920, which was the basis of his prosecution in this case. H. Rudolph was addicted to the use of morphine, and these two men were acquainted each with the other, and each knew that the other was addicted to this use. Rudolph had never obtained any morphine from the defendant prior to this transaction. Rudolph had been arrested about two weeks prior to the 2d of April for the violation of this Narcotic Act. Previous to that arrest he had been convicted of a prior violation of the act, and had served a year and a day at Leavenworth. Clyde Lake was a narcotic inspector in the Internal Revenue Service of the United States. He had arrested Rudolph about two weeks before April 7, 1920. Rudolph testified that while he was thus under arrest Mr. Lake sent for him to meet him at Green Davenport's house; that they met there; that Lake told him that he would let him go if he would help him catch some of the law violators; that after they had talked this proposition over, and made an agreement between him and Lake and other officers of the government to catch Butts, he called the latter up on the telephone, told him he wanted some morphine, and Butts answered that he had none, and then Rudolph asked him if he could get an ounce, and how much it would be, and the defendant told him to call him the next day. He testified that he did not intend to use this ounce of morphine, but intended to get it so that the officers could arrest Butts, and he could be a friend of the officers; that the next day he called Butts again, and Butts told him he could get the morphine for $190; that Lake furnished Rudolph with the $190, and sent him to get the morphine, and as it was delivered by Butts to Rudolph the officers arrested Butts. Lake testified that the telephone calls and

Butts were had when he was present with Rudolph; that he furnished the $190 and directed all the proceedings in which Rudolph took part. Butts testified that Rudolph called him on the telephone and asked him if he could get him some morphine; that Rudolph told him that he was sick and that his wife was sick (Rudolph denied that he told Butts of this sickness); and he (Butts) told Rudolph he could not get any, and he did not have any himself, and Rudolph replied that he would call again the next day; that Rudolph called him again the next day, and he told him he had no morphine; that Rudolph then asked him if he could not get him some off of somebody, and thereupon he did get a box of it of Joe Green, and arranged to meet Rudolph and deliver it to him; that he did not buy the morphine from Green, but was to give to Green just what he got from Rudolph for it. There was some other evidence in the case, but it was not material to the question under consideration.

When the entire evidence in this record is considered, it conclusively proved (1) that the defendant was not and never had been engaged in dealing in morphine, and that he never sold any of it to anyone before the transaction here in issue; and (2) that the conception of and the intention to do the acts which the defendant did in this matter did not originate in his mind or with him, but were the products of the fertile brains of the officers of the government, which they instilled into the mind of the defendant, and, by deceitful representations and importunities, lured him to put into effect.

It is not denied that, in cases where the criminal intent originates in the mind of the defendant, the fact that the officers of the government used decoys or truthful statements to furnish opportunity for or to aid the accused in the commission of a crime, in order successfully to prosecute him therefor, constitutes

18 A.L.R.-10.

Price v. United States, 165 U. S. 311, 315, 41 L. ed. 727, 17 Sup. Ct. Rep. 366; Grimm v. United States, 156 U. S. 604, 610, 39 L. ed. 550, 552, 15 Sup. Ct. Rep. 470; Goode v. United States, 159 U. S. 663, 669, 40 L. ed. 297, 300, 16 Sup. Ct. Rep. 136; Andrews v. United States, 162 U. S. 420, 423, 40 L. ed. 1023, 1024, 16 Sup. Ct. Rep. 798; Fiunkin v. United States, C. C. A. 265

Fed. 1.

But when the accused has never committed such an offense as that charged against him prior to the time when he is charged with the offense prosecuted, and never conceived any intention of committing the offense prosecuted, or any such offense, and had not the means to do so, the fact that the officers of the government incited and by persuasion and representation lured him to commit the

entrapment into

Drug Act

offense charged, in Poison order to entrap, ar- violation of rest, and prosecute defense. him therefor, is and ought to be fatal to the prosecution, and to entitle the accused to a verdict of not guilty. Peterson V. United States, 166 C. C. A. 509, 255 Fed. 433; United States v. Echols (D. C.) 253 Fed. 862; Sam Yick v. United States, 153 C. C. A. 96, 240 Fed. 65; Voves v. United States, 161 C. C. A. 227, 249 Fed. 192; Peoples v. McCord, 76 Mich. 200, 42 N. W. 1108, 8 Am. Crim. Rep. 117; Woo Wai v. United States, 137 C. C. A. 604, 223 Fed. 414. There was ample, if not conclusive, evidence in this case to sustain a finding of the jury that this case fell under the latter rule. The defendant had never committed any such offense as the officers of the government arrested and prosecuted him for, prior to the time when they induced him to do the acts disclosed by this testimony. There is no evidence that he had he had ever contemplated, much less intended, to sell any morphine. He had never done so,-he had none to sell. The officers, through their agent, Rudolph, in

scionable, contrary to public policy, and to the established law of the land, to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it. It was fatal error to refuse to instruct the jury as requested, and it is unnecessary to discuss the other alleged errors at the trial, because, if they existed, they will probably not be committed again.

Let the judgment below be reversed, and let the case be remanded to the court below, with directions to grant a new trial.

I. General principles:

a. Where criminality of act is not
affected by question of
consent:

1. Criminal intent originating
in mind of accused, 146.
2. Criminal intent originating
in mind of entrapping per-
son, 149.

b. Where criminality of act is af-
fected by question of consent,
149.

II. Particular crimes:

a. Abortion, 151.

b. Bribery or offer to bribe, 152.

c. Burglary, 155.

d. Conspiracy, 158.

e. Counterfeiting, 160.

f. Criminal libel, 160.

g. Embezzlement, 160.

h. Espionage Act violation, 160.

i. Extortion, 161.

j. False pretenses, 161.
k. Illegal sales:

1. Goods bearing counterfeit
labels, 162.

2. Intoxicating liquor:
(a) Persons generally, 162.
(b) Indians, 168.

1. General principles.

a. Where criminality of act is not affected by question of consent.

1. Criminal intent originating in mind of accused.

Where the doing of a particular act

II. k-continued.

3. Lottery tickets, 169.

4. Narcotics, 170.

5. Obscene matter, 171.

1. Immigration Law violation, 171. m. Interstate Commerce Act violation, 171.

n. Larceny, 172.

o. Manufacture of explosives, 178. p. Narcotic Act violation, 178. q. Passing forged instrument, 178.

r. Postal Law violation:

1. Sending nonmailable matter,

179.

2. Stealing from mails, 181.
3. Using mails to defraud, 185.

s. Practice of dentistry without
license, 186.

t. Procuring women for immoral purposes, 186.

u. Pure Food and Drug Act violation, 187.

v. Receiving stolen property, 187.
w. Robbery, 189.

x. Subornation of perjury, 191.
y. Trading with slave, 191.

z. Traffic ordinance violation, 192. is a crime regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused, and the criminal offense is completed, the fact that an opportunity is furnished, or that the