Criminal Law

U.S. vs. Phelps G.R. No. L-5728 August 11, 1910 Instigation or Inducement


Internal Revenue Agent Homer C. Smith induced one James O. Phelps to look for an opium den where he could smoke opium. Smith went to Phelps three times to convince the latter of his real desire to smoke opium. Because of Smith’s insistence, Phelps made efforts to look for a place where both of them could smoke this drug until he finally found one. Phelps took Smith to that place which turned out to be the house of a Chinaman and there Smith received an opium pipe and gave P2 for the service. After a while, Smith went out and returned forty minutes afterwards to arrest Phelps.


Whether or not there was instigation or inducement.



This is a clear case of inducement.

The prosecution does not contend that the appellant sold or had in his possession any opium, neither does it contend that he had in his possession any of the prohibited paraphernalia used in smoking this drug. He is only charged with having smoked opium this one time in the house of the Chinaman, and the prosecution rests its case solely upon the testimony of the witness Smith, who was an employee of the Bureau of Internal Revenue, secretly acting in that capacity in Jolo.

On arriving in Jolo, Smith obtained employment in order to hide his true mission. He assumed the name of Lockwood for the same purpose, engaged in gambling, and admits having visited the house of the appellant three times for the purpose of making arrangements for himself and the accused to smoke opium. He urged the accused to have the Chinaman make arrangements so they both could smoke. He went to the house of the Chinaman with the accused and paid the said Chinaman, according to his own statement, P1 for the preparation of the opium. If he had, by these means, induced the appellant to sell opium or to exhibit in his possession either opium or any of the prohibited paraphernalia, his testimony would be more reasonable, since the mere possession of the drug or any of the prohibited paraphernalia is a violation of the law within itself.

But, as we have said, it is not contended that the accused had in his possession any of these things. According to the statements made by the witness Smith, he not only suggested the commission of this crime, but he (Smith) also states that he desired to commit the same offense and would pay his part of the expense necessary for the commission of the prohibited act. Such conduct on the part of a man who is employed by the Government for the purpose of taking such steps as are necessary to prevent the commission of the offense and which would tend to the elevation and improvement of the defendant, as a would-be criminal, rather than further his debasement, should be rebuked rather than encouraged by the courts; and when such acts as those committed by the witness Smith are placed beside the positive testimony of the defendant, corroborated by the Chinaman and the doctor, the testimony of such witness sinks into insignificance and certainly does not deserve credit. When an employee of the Government, as in this case, and according to his own testimony, encourages or induces persons to commit a crime in order to prosecute them, such conduct is most reprehensible. We desire to be understood that we base our conclusions as to the conduct of the witness Smith and the incredibility of his testimony on his own acts according to his own testimony.

We are, therefore, of the opinion and so hold, that the appellant is not guilty of this crime. The judgment of the lower court is reversed and the appellant acquitted, with costs de oficio.

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