Bickmore's place in Westminster. Petitioner told his two companions that he was quite sure that he could get some liquor at Bickmore's that "he had never failed there." When they arrived at Bickmore's place petitioner left the car, went into Bickmore's home and in about fifteen minutes returned with two bottles of whisky, which he delivered to one of the prosecuting witnesses-the one from whom he had received the six dollars at the beginning of their quest.

Petitioner's contentions are: (1) That there is no evidence that he "sold" any whisky; that the testimony shows merely that he acted as the agent for the two "investigators" in the purchase of the liquor, and that under the Volstead Act, the "penal provisions" of which are adopted by the Wright Act, the purchase of liquor is not a crime-citing Singer v. United States, 278 Fed. 415, where the court says: "It is a crime to sell, but not a crime to purchase." (2) That if he committed any offense he was inveigled into it by the "investigators," who paid him the money with which to make the purchase.

If petitioner were entitled to a discharge merely upon a showing that the evidence is insufficient to make out a case of probable cause for believing him guilty of the specific crime for which he was held to answer the crime of “selling" intoxicating liquor-we should entertain grave doubt as to the legality of his imprisonment. Many cases are to be found in the books to the effect that if a defendant is in no way interested on behalf of the seller, but simply acts as agent of the prosecutor, he is not guilty of making a sale. The Texas court of criminal appeals, having under consideration a state of facts somewhat similar to that presented here, held that the evidence disclosed a case of agency in the purchase of the liquor and not a "sale" by the accused, (Givens v. State, 49 Tex. Cr. 267 [91 S. W. 1090].) the other hand, the supreme court of Georgia and the court of appeals of that state have held that if it be shown that the accused received money from another person, accompa nied with a request to procure intoxicating liquor for the latter, and that shortly thereafter the accused delivered the liquor to the person by whom he was given the money, a prima facie case of a sale by the accused is made out, the onus is put upon him to explain where, how and from whom he received the liquor, and to escape criminal responsibility

for making a sale he must satisfy the jury that he did not induce the transaction, that he had no profits in it, that he was not an agent of the seller and that he acted solely as agent for the purchaser. (Mack v. State, 116 Ga. 546 [42 S. E. 776]; Highsmith v. City of Waycross, 7 Ga. App. 611 [67 S. E. 677]; Plummer v. State, 8 Ga. App. 379 [69 S. E. 28].)

[1] However, we do not find it necessary in this case to determine whether the evidence is sufficient to show probable cause for believing petitioner guilty of selling the liquor, for it unquestionably suffices to show probable cause for believing him guilty of possessing it unlawfully. "Possession, says the court in Beyer v. United States, 282 Fed. 226, "is a crime separate and distinct from the crime of the sale of liquor." In section 3 of the National Prohibition Law it is expressly declared that "no person shall. possess any intoxicating liquor except as authorized in this act." [2] Possession, therefore, except as authorized by the Volstead Act, is one of the acts which the Wright Act, by its adoption of the "penal provisions" of the federal statute, denounces as a criminal offense. [3] It is the established rule in this state that where the evidence before the committing magistrate shows probable cause to believe the accused guilty of any criminal offense, though it be an offense other than the one for which he was held to answer, it is not proper to discharge him upon habeas corpus until the proper authorities have had an opportunity to cause the correct charge to be preferred against him. (Ex parte Keil, 85 Cal. 309 [24 Pac. 742]; Ex parte Nicholas, 91 Cal. 640 [28 Pac. 47]; In re Severin, 188 Cal. 348 [205 Pac. 101].) [4] Therefore, if it be assumed that the evidence fails to establish probable cause for believing petitioner guilty of the crime of selling liquor unlawfully, he nevertheless should be held in custody until such time as the authorities may have an opportunity to proceed against him for unlawfully having the whisky in his possession.

[5] We do not find any merit in petitioner's second point. [6] It may be conceded that it would be violative of sound public policy and repugnant to good morals to uphold the conviction of a person who, being entirely innocent of any intention to commit a crime, was inveigled into its commission by an officer of the law or by a private detec

tive hired for that purpose by some self-constituted guardian of the public morals. (People v. Barkdoll, 36 Cal. App. 25 [171 Pac. 440].) The rule that private detectives, as well as officers of the law, are not permitted to generate in the mind of a person who is wholly innocent of any criminal purpose the original intent to commit criminal acts which that person would not have committed or even have contemplated but for such inducement, and that convictions based upon such conduct will not be permitted to stand, is a wholesome and salutary rule and should be enforced. But it has no application to the facts of this case. Here the facts and circumstances surrounding the transactions testified to by the witnesses before the committing magistrate are abundantly sufficient to warrant the inference that petitioner not only was willing to comply with the request that he procure the whisky, but that he had a strong personal predilection to obtain the liquor for his new-found friends. His whole course of conduct, and particularly his statements to the "investigators," such, for example, as his statement that never before had he failed to secure liquor at one of the places visited by them, fully justifies the inference that his criminal purpose to procure the whisky from someone known to him to be a vendor of intoxicating liquors took ready root in his mind, not as one passively yielding to the inducements of another, but as a willing, active, and enthusiastic co-operator in the proposed plan to secure liquor, thinking, possibly, that thereby he might attain to "an airy scene of transitory joys." It may well be inferred, therefore, that petitioner, when complying with the request that he procure the drink, was but voluntarily and intentionally carrying out a criminal purpose of his own. The law of "entrapment" is stated in a recent Idaho case as follows: "Intrapment into the commission of a crime is not a defense in the sense of a justification or excuse for an act which otherwise would be criminal, but it resolves itself into a question of whether the accused committed any crime. If the criminal design originated with him, or if he intentionally committed or carried out his own criminal purpose, whether it originated with him or not, at the suggestion of another person, the fact that someone other than the accused facilitated the execution of the scheme, or that an officer appeared to co-operate with him, will not be a defense." (State v. Mantis, 32 Idaho,

724 [187 Pac. 268].) It was held in State v. Lucas, 94 Mo. App. 117 [67 S. W. 971], that the fact that the prosecuting witnesses were furnished the money by citizens for the purpose of buying whisky at a particular drugstore with a view to prosecuting the seller, and that each bought the whisky with the money so furnished, is no defense. See, also, State v. O'Brien, 35 Mont. 482 [10 Ann. Cas. 1006, 90 Pac. 514]. The writ is denied.

Works, J., and Craig, J., concurred.

[Crim. No. 823. Third Appellate Districi.—December 51, 1924.] THE PEOPLE, Respondent, v. CARLO COLOMBO, Appellant.

[1] CRIMINAL LAW-INTOXICATING LIQUORS POSSESSION OF PRIOR CONVICTION-PLEADING AMENDMENT DURING TRIAL-PREJUDICIAL ERROR. In a prosecution for the unlawful possession of intoxicating liquor, where the information, which included a prior conviction on a charge of unlawful possession of intoxicating liquor, was read to the jury after the defendant had pleaded not guilty and denied the prior conviction, the action of the trial court in permitting the district attorney, upon it being shown at the trial that the record relating to the prior conviction showed a conviction of a different offense than that charged in the information, to amend the information was prejudicial to the substantial rights of the defendant.

[2] ID.-PRIOR CONVICTION—ARRAIGNMENT.-When a defendant is arraigned on a charge containing an allegation of a prior conviction he is not called upon to state that he has suffered a prior conviction of an offense other than the one charged.

[3] ID. PLEADING PRESUMPTIONS.-It must be presumed that the defendant would have admitted the prior conviction at his arraignment if it had been correctly charged.

[4] ID.

- PRIOR CONVICTION-PLEADING.-It is not necessary to allege previous convictions with the same particularity as if the party was charged originally with the commission of such offense. [5] ID.-WARNING GIVEN TO DEFENDANT BY WIFE-ADMISSIBILITY OF TESTIMONY PRIVILEGED COMMUNICATIONS.-In such prosecution, the testimony of the sheriff to the effect that defendant's wife warned defendant of the approach of the sheriff was admissible

only because the defendant acted upon the warning in endeavoring to dispose of the liquor alleged to have been in his possession, and the admission of such testimony was not violative of the statutory provision prohibiting a husband or wife from being examined for or against the other without the other's consent. [6] ID. VERDICT EVIDENCE-APPEAL.-In such prosecution, the evidence relating to the smell of the liquor, the defendant's actions with relation to the warning given him, including his pale face and his act of flushing out the sink, and the color of the liquor, when considered together, was sufficient to justify the verdict, and the question for the jury to determine being one of fact, their verdict is conclusive on appeal.

[7] ID. CHARACTER OF LIQUOR EVIDENCE.-A witness may testify as to the character of a liquor from its color, taste, or smell.

(1) 31 C. J., p. 827, n. 96, 98. (3) 17 C. J., p. 218, n. 73 New. Cyc., p. 2213, n. 34. (6) 17 C. n. 53, p. 774, n. 14, p. 788, n. 85.

(2) 16 C. J., p. 1342, n. 92 New. (4) 31 C. J., p. 735, n. 83. (5) 40 J., p. 255, n. 53; 33 C. J., p. 761, (7) 33 C. J., p. 775, n. 34.

APPEAL from a judgment of the Superior Court of Tuolumne County and from an order denying a new trial. J. T. B. Warne, Judge. Reversed.

The facts are stated in the opinion of the court.

J. B. Curtin and A. S. Ormsby for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

FINCH, P. J.-The information filed in this case charged the defendant with the unlawful possession of intoxicating liquor on the thirteenth day of January, 1924. In a separate count it charged:

"That prior to the 13th day of January, 1924, to-wit the 5th day of November, 1923, defendant above named was convicted in the justice's court of Fourth Township, Tuolumne County, California, on a charge of unlawfully having and possessing intoxicating liquors, containing in excess of one half of one per cent of alcohol, which was fit for use for beverage purposes, contrary to the provisions of the act commonly referred to as the Wright Act."

7. See 14 Cal. Jur. 751.