malicious trespass or the malicious destruction of property be defended on the ground that the property destroyed was intoxicating liquors kept in violation of law. And an indictment for uttering counterfeit money may be sustained, though it may have been given to a prostitute.10

VI. CONTRIBUTORY ACTS OR NEGLIGENCE OF OTHERS

§ 182. Of person injured. Since a crime is punished because of the wrong and injury to the public, and not to redress the individual, contributory negligence on the part of the person injured by a crime is generally no defense. So on a prosecution for manslaughter by negligence, 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.11 And on a prosecution for murder or manslaughter it is no defense that the deceased might have recovered from the injury if he had submitted to a surgical operation, or used due care.12 And, 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.18

§ 183. Of third persons. 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. So if a person's act is a direct cause of another's death, he is responsible therefor, notwithstanding the wrongful act of a third person may have contributed to cause the death.14 And in those statutory crimes where intent is not an essential element of the offense,15 the fact that the violation of the statute would not have occurred but for the unlawful acts of third persons over whom the defendant had no control is not a defense, where such acts could have been prevented by proper supervision on his part.16 This rule does not apply, however, where the injury or

9 See § 837, infra. 10 See § 596, infra.

11 See § 608, infra.

12 See § 610, infra.

18 See § 1257,

infra.

14 See § 611, infra.

15 See § 85, supra.

16 On a prosecution of a railroad

company for permitting a train to stand on a crossing for more than five minutes, it is no defense that third persons opened the air-cocks on some of the cars, and thus made it impossible to move the train from the crossing within the time prescribed, where it is not shown that the defendant

death was not due at all to the act or neglect of the accused, but solely to the intervening act of a third person.17

VII. CONSENT, SETTLEMENT OR CONDONATION

§ 184. Consent-In general. If an act is punished because of the injury to the community at large, rather than because of any injury to a particular individual, consent of the individual does not make it any the less a crime, nor prevent the state from punishing it.18 But there are some acts which are made criminal only when and because they are done without the consent of the person against whom they are directed, in which case his or her consent is necessarily a complete defense.19 This is true of rape, for example, where want of consent is an essential element of the offense,20 unless the woman is below the statutory age of consent.21 And it is also generally true of offenses against property,22 and, under some circumstances, of assault and battery or felonious assault.23

§ 185. - What amounts to consent. "Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another." 24 It is to be distinguished from mere sub

could not have prevented the mischief by proper supervision. Com. v. New York Cent. & H. River R. Co., 202 Mass. 394, 88 N. E. 764, 23 L. R. A. (N. S.) 350, 132 Am. St. Rep. 507, 16 Ann. Cas. 587.

17 See § 611, infra.

18 State v. West, 157 Mo. 309, 57 S. W. 1071; Davis v. State, 70 Tex. Cr. 524, 158 S. W. 288; State v. Roby, 83 Vt. 121, 74 Atl. 638; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853; Reg. v. Coney, 8 Q. B. Div. 534, 15 Cox C. C. 46.

This is generally true of crimes involving a breach of the peace. Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328; State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801; Rex v. Billingham, 2 Car. & P. 234.

bigamy (see § 1125 et seq., infra), incest (see § 1039, infra), seduction (see § 1057 et seq., infra), lewdness (see § 1122, infra), the crime against nature (see § 1043, infra), etc.

infra),

infra),

19 State v. West, 157 Mo. 309, 57 S. W. 1071, quoting 1 Bishop New Crim. Law, § 258.

20 See § 902, infra.
21 See § 892, infra.

22 It is true of larceny (see § 768 et seq., infra), robbery (see § 943, infra), burglary (see § 474, infra), extortion by putting in fear (see § 1198 et seq., infra), etc. And it is equally true although the consent is given for the purpose of entrapping the accused and is not known to him. See § 187, infra.

23 See § 442 et seq., infra.

24 People v. Dong Pok Yip, 164 Cal. 143, 127 Pac. 1031.

mission or assent.25 Consent induced by duress so great as to be sufficient to reasonably destroy free will is only apparent consent, and is no defense,26 nor, as a rule, is consent induced by fraud, although as to this there is some conflict of authority.27 To constitute a defense in any case the person giving the consent must have been capable of consenting,28 and the acts done must have been within the consent.29

§ 186. Settlement and condonation. Generally a criminal prosecution is not barred by the fact of settlement with, or condonation by, the person injured, in the absence of a statutory provision to the contrary.30 In some jurisdictions an exception to the rule has been

recognized in certain cases where the offense involves no crime against society or good morals, but relates solely to the redress of private property wrongs.31 And bastardy proceedings may generally be settled by the parties so as to prevent further proceedings by the mother, but will not bar the state from instituting a criminal prosecution.32 Statutes in some states permit a settlement in misdemeanor cases at the discretion of the examining magistrate or of the court, and provide for the discharge of the accused in case such a settlement is made.33

VIII. ENTRAPMENT AND INSTIGATION

§ 187. 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.34 Any person, under such circumstances, may obtained a complete and full release of all actions he might have against the defendant. Com. v. Radzmowicz, 39 Pa. Super. Ct. 173.

31 Riding or driving another's horse or mule without his consent. Sanders v. State, 4 Ga. App. 850, 62 S. E. 567; Holsey v. State, 4 Ga. App. 453, 61 S. E. 836. And see § 782, infra.

32 Rohrheimer v. Winters, 126 Pa. St. 253, 17 Atl. 606; State v. Dougher, 47 Minn. 436, 50 N. W. 475.

38 See the statutes of the various states and the following cases:

United States. Noble V. United States, 190 Fed. 538.

Georgia. Sanders v. McKee, 145 Ga. 507, 89 S. E. 484; Deen v. Williams, 128 Ga. 265, 57 S. E. 427; Jones v. Dannenberg Co., 112 Ga. 426, 37 S. E. 729, 52 L. R. A. 271; Goolsby v. Bush, 53 Ga. 353; Griffin v. State, 12 Ga. App. 615, 77 S. E. 1080.

New York. Cleveland V. Cromwell, 110 App. Div. 82, 96 N. Y. Supp.

475.

Oregon. State v. Keep, 85 Ore. 265, 166 Pac. 936; Saxon v. Conger, 6 Ore. 388.

Pennsylvania. Rothermal v. Hughes, 134 Pa. St. 510, 19 Atl. 677; Geier v. Shade, 109 Pa. St. 180; Com. v. Radzinowicz, 39 Pa. Super. Ct. 173; Com. v. Carr, 28 Pa. Super. Ct. 122.

In Oregon, in order to effect a legal compromise the defendant must have been held to answer, and the act must be one for which the law affords a remedy by civil action. In effecting a compromise for larceny, the person whose property has been stolen has no right to exact, or demand, or receive anything more than the property or its value, and the necessary expense incurred in reclaiming it. If he wishes more than that, he must let the law take its course, and resort to his civil remedy for the recovery of damages. Saxon v. Conger, 6 Ore. 389.

The Pennsylvania statute applies only to minor offenses such as assaults and batteries, and not to misdemeanors which are infamous crimes. Chambers v. Burroughs, 44 App. Cas. (D. C.) 168, certiorari denied 239 U. S. 649, 60 L. Ed. 485, 36 Sup. Ct. 284.

34 United States. Woo Wai V. United States, 223 Fed. 412.

furnish opportunities for the commission of the crime, or even assist in its commission, without relieving the accused from responsibility.35 Nor will mere deception by a detective,86 nor even the fact that he aids in the commission of the offense,37 exonerate the guilty party. 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, or otherwise permitted the theft in order to entrap and prosecute him.38 And a man cannot escape punish