Joe RUSSO, Plaintiff in Error, v. UNITED STATES, Defendant in Error

Joe RUSSO, Plaintiff in Error, v. UNITED STATES, Defendant in Error. Circuit Court of Appeals, Sixth Circuit. April 13, 1927. No. 4838. Error to the District Court of the United States for the Northern District of Ohio; Paul Jones, Judge. John B. Osmun, of Cleveland, Ohio (A. E. Bemsteen, of Cleveland, Ohio, on the brief), for defendant in error. Harry P. Glick, of Cleveland, Ohio, for plaintiff in error. Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The indictment, brought under section 39 of the Penal Code (Comp. St. § 10203), is attacked as insufficient because it alleges only the payment of money to a prohibition agent “to procure and obtain the release of” a prisoner charged with violating the National Prohibition Act (Comp. St. § 10138 et seq.), and “to obtain the dismissal of the case then pending,” wherein this prisoner was charged with violating the National Prohibition Act; and it is said that these matters of release or dismissal cannot be brought before a prohibition agent in his official capacity, and hence the indictment does not allege that this agent was to be induced “to do or not to do any act in violation of his lawful duty.” This contention, while it has superficial force, must be overruled, on the authority of our decisions in Rembrandt v. U. S., 281 F. 122; Browne v. U. S., 290 F. 870, 872; Cohen v. U. S., 294 P. 488, 489. The defense of entrapment presented, at most, a question for a jury. There is no criticism of the charge thereon. The judgment is affirmed.