MR. JUSTICE ANGSTMAN:
[177]*177Defendant appealed from a judgment of conviction entered upon a verdict of a jury finding him guilty of selling liquor to a minor and from an order denying his motion for a new trial.
Jerry Gallagher, a minor, went with the probation officer, Jordan Gore, the county attorney of Fergus County and the state liquor inspector, Marion McCullum, to the town of Grass Range, where the defendant operated a bar. Upon arriving there at about 9 p.m. on March 5, 1953, the probation officer gave Gallagher a ten dollar bill and told him to “go in and buy me a bottle of whiskey.” Gallagher went to defendant’s bar. The county attorney and the liquor inspector placed themselves in a position in front of the window of the bar and they testified that they saw defendant sell a bottle of whiskey to Gallagher.
After Gallagher purchased the whiskey he returned to the car wherein Mr. Gore had stayed and gave the whiskey to Mr. Gore along with $4.00. Both of the witnesses at the window testified that' they had observed Gallagher talking to defendant, receiving a bottle of whiskey from defendant and exchanging what they believed to be money and leaving the bar with the whiskey. The transaction in connection with the purchase of the whiskey took but two to four minutes.
The bottle of whiskey was properly marked for identification and was introduced in evidence at the trial.
The defendant testified that he had known Jerry Gallagher and that he was positive he did not sell him whiskey on the night in question.
Mrs. Parr and two other witnesses called for the defense testified to the same general effect.
The defendant assigns sixteen specifications of error, some of which are repetitious and overlapping, but in the aggregate they present the following legal questions:
1. Did the act of the officers in enlisting the aid of a minor to purchase liquor from the defendant constitute entrapment so as to entitle defendant to an instruction on that subject?
[178]*1782. Was it reversible error for the state not to subpoena Gallagher as a witness?
3. Do the verdict and judgment rest upon the uncorroborated testimony of accomplices?
The court was right in refusing to instruct the jury on the question of entrapment. In the case of State v. O’Brien, 35 Mont. 482, 90 Pac. 514, 520, the court said: “The defendant’s motion for direction of a verdict in his favor at the close of the state’s case was properly denied. The evidence submitted shows, prima facie, a sale of whisky in violation of the statute. The question of defendant’s guilt was one for the jury. But it is argued that it appeared therefrom that the county attorney had furnished the money with which the purchases were made by the state’s witnesses, and that, since the prosecuting officer had himself thus induced the violation of the law, a conviction could not be had. Such evidence is always competent (In re Wellcome, 23 Mont. 450, 59 Pac. 445), and it is no defense to a prosecution of this kind that the purchase was made by a spotter, a detective, or hired informer. 23 Cyc. 184; 12 Cyc. 447.”
In 18 A.L.R. 162, it is said: ‘ ‘ The great weight of authority supports the view that a person making an unlawful sale of liquor is not excused from criminality by the fact that the sale is induced for the sole purpose of prosecuting the seller.”
This rule has been applied in many cases in this state involving matters other than the sale of intoxicants, some being State v. Neely, 90 Mont. 199, 300 Pac. 561; State v. Neidamier, 98 Mont. 124, 37 Pac. (2d) 670; State v. Snider, 111 Mont. 310, 111 Pac. (2d) 1047, and State v. Wong Hip Chung, 74 Mont. 523, 241 Pac. 620.
In the Snider case [111 Mont. 310, 111 Pac. (2d) 1049] the court pointed out the “ ‘distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of criminal designs of his own conception.’ ”
In the case of Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 212, 77 L.Ed. 413, 86. A.L.R. 249, the court stated that “the fact that officers or employees of the government merely [179]*179afford opportunities or facilities for the commission of the offense does not defeat the prosecution.”
In 15 Am. Jur., Criminal Law, section 335, at page 24, it is said: “It may therefore be stated as a general rule that where the doing of a particular act 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 accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor constitutes no defense. To the argument that the act is done at the instigation or solicitation of an agent of the government, the courts have responded that the purpose of the detective is not to solicit the commission of the offense, but to ascertain if the defendant is engaged in an unlawful business. It is no defense that a person, acting as a decoy, furnished an opportunity for the commission of the offense. Such conduct is held not to procure the offense to be committed, the theory being that the offender acts of his own volition and is simply caught in his own devices. ’ ’
Counsel for the appellant contends this case falls within an exception to the general rule. He contends that where the decoy is one of concealed disability the entrapment is a defense to the prosecution. He relies on United States v. Healy, D. C. 1913, 202 F. 349, and Voves v. United States, 7 Cir., 1918, 249 F. 191.
The record here does not show any concealed disability on the part of Jerry Gallagher, the minor. The only evidence bearing on the subject is that Gallagher had the usual “kid” whiskers. He had no false whiskers, nor was he in any way disguised. There was no evidence that he looked older than 21 years (even though it be assumed that such fact would be material). Even the defendant, who testified that he knew him well, would not say that he thought he was over 21 years of age. He testified:
“Q. You know he is a minor, you know he is under the age [180]*180of 21 years? A. I don’t know that, he’s pretty well growed up.
Q. You know he is under 21. A. I thought he was around 21.”
Defendant’s counsel contends that some of his offered evidence of concealed disability was improperly excluded. He contends that it was error to exclude a photograph of Jerry Gallagher taken about one year and two months after the purchase of the whiskey here involved, and which was offered in evidence as a part of the cross-examination of Jerry’s mother. This was objected to as being improper cross-examination and as serving no purpose. The court properly excluded this offered exhibit. It was improper cross-examination, and the photograph having been taken more than a year after the offense was committed was no evidence of Jerry’s appearance at the time he purchased the whiskey from defendant (if that be material). Neither the evidence which was received nor that which was offered and excluded showed any concealed disability so as to bring this case within the cases relied on by appellant’s counsel.
In the case of United States v. Healy, D.C., 202 F.
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MR. JUSTICE ANGSTMAN:
[177]*177Defendant appealed from a judgment of conviction entered upon a verdict of a jury finding him guilty of selling liquor to a minor and from an order denying his motion for a new trial.
Jerry Gallagher, a minor, went with the probation officer, Jordan Gore, the county attorney of Fergus County and the state liquor inspector, Marion McCullum, to the town of Grass Range, where the defendant operated a bar. Upon arriving there at about 9 p.m. on March 5, 1953, the probation officer gave Gallagher a ten dollar bill and told him to “go in and buy me a bottle of whiskey.” Gallagher went to defendant’s bar. The county attorney and the liquor inspector placed themselves in a position in front of the window of the bar and they testified that they saw defendant sell a bottle of whiskey to Gallagher.
After Gallagher purchased the whiskey he returned to the car wherein Mr. Gore had stayed and gave the whiskey to Mr. Gore along with $4.00. Both of the witnesses at the window testified that' they had observed Gallagher talking to defendant, receiving a bottle of whiskey from defendant and exchanging what they believed to be money and leaving the bar with the whiskey. The transaction in connection with the purchase of the whiskey took but two to four minutes.
The bottle of whiskey was properly marked for identification and was introduced in evidence at the trial.
The defendant testified that he had known Jerry Gallagher and that he was positive he did not sell him whiskey on the night in question.
Mrs. Parr and two other witnesses called for the defense testified to the same general effect.
The defendant assigns sixteen specifications of error, some of which are repetitious and overlapping, but in the aggregate they present the following legal questions:
1. Did the act of the officers in enlisting the aid of a minor to purchase liquor from the defendant constitute entrapment so as to entitle defendant to an instruction on that subject?
[178]*1782. Was it reversible error for the state not to subpoena Gallagher as a witness?
3. Do the verdict and judgment rest upon the uncorroborated testimony of accomplices?
The court was right in refusing to instruct the jury on the question of entrapment. In the case of State v. O’Brien, 35 Mont. 482, 90 Pac. 514, 520, the court said: “The defendant’s motion for direction of a verdict in his favor at the close of the state’s case was properly denied. The evidence submitted shows, prima facie, a sale of whisky in violation of the statute. The question of defendant’s guilt was one for the jury. But it is argued that it appeared therefrom that the county attorney had furnished the money with which the purchases were made by the state’s witnesses, and that, since the prosecuting officer had himself thus induced the violation of the law, a conviction could not be had. Such evidence is always competent (In re Wellcome, 23 Mont. 450, 59 Pac. 445), and it is no defense to a prosecution of this kind that the purchase was made by a spotter, a detective, or hired informer. 23 Cyc. 184; 12 Cyc. 447.”
In 18 A.L.R. 162, it is said: ‘ ‘ The great weight of authority supports the view that a person making an unlawful sale of liquor is not excused from criminality by the fact that the sale is induced for the sole purpose of prosecuting the seller.”
This rule has been applied in many cases in this state involving matters other than the sale of intoxicants, some being State v. Neely, 90 Mont. 199, 300 Pac. 561; State v. Neidamier, 98 Mont. 124, 37 Pac. (2d) 670; State v. Snider, 111 Mont. 310, 111 Pac. (2d) 1047, and State v. Wong Hip Chung, 74 Mont. 523, 241 Pac. 620.
In the Snider case [111 Mont. 310, 111 Pac. (2d) 1049] the court pointed out the “ ‘distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of criminal designs of his own conception.’ ”
In the case of Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 212, 77 L.Ed. 413, 86. A.L.R. 249, the court stated that “the fact that officers or employees of the government merely [179]*179afford opportunities or facilities for the commission of the offense does not defeat the prosecution.”
In 15 Am. Jur., Criminal Law, section 335, at page 24, it is said: “It may therefore be stated as a general rule that where the doing of a particular act 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 accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor constitutes no defense. To the argument that the act is done at the instigation or solicitation of an agent of the government, the courts have responded that the purpose of the detective is not to solicit the commission of the offense, but to ascertain if the defendant is engaged in an unlawful business. It is no defense that a person, acting as a decoy, furnished an opportunity for the commission of the offense. Such conduct is held not to procure the offense to be committed, the theory being that the offender acts of his own volition and is simply caught in his own devices. ’ ’
Counsel for the appellant contends this case falls within an exception to the general rule. He contends that where the decoy is one of concealed disability the entrapment is a defense to the prosecution. He relies on United States v. Healy, D. C. 1913, 202 F. 349, and Voves v. United States, 7 Cir., 1918, 249 F. 191.
The record here does not show any concealed disability on the part of Jerry Gallagher, the minor. The only evidence bearing on the subject is that Gallagher had the usual “kid” whiskers. He had no false whiskers, nor was he in any way disguised. There was no evidence that he looked older than 21 years (even though it be assumed that such fact would be material). Even the defendant, who testified that he knew him well, would not say that he thought he was over 21 years of age. He testified:
“Q. You know he is a minor, you know he is under the age [180]*180of 21 years? A. I don’t know that, he’s pretty well growed up.
Q. You know he is under 21. A. I thought he was around 21.”
Defendant’s counsel contends that some of his offered evidence of concealed disability was improperly excluded. He contends that it was error to exclude a photograph of Jerry Gallagher taken about one year and two months after the purchase of the whiskey here involved, and which was offered in evidence as a part of the cross-examination of Jerry’s mother. This was objected to as being improper cross-examination and as serving no purpose. The court properly excluded this offered exhibit. It was improper cross-examination, and the photograph having been taken more than a year after the offense was committed was no evidence of Jerry’s appearance at the time he purchased the whiskey from defendant (if that be material). Neither the evidence which was received nor that which was offered and excluded showed any concealed disability so as to bring this case within the cases relied on by appellant’s counsel.
In the case of United States v. Healy, D.C., 202 F. 349, relied on by appellant, it was stated by the court that “nothing in the latter’s [speaking of the decoy] dress, speech, manner, or appearance served to put him [defendant] on inquiry therein”. Here, so far as this record is concerned, Jerry’s speech, manner and appearance were typical of those of a boy of his age. Defendant’s own testimony was sufficient to place him on inquiry when he said he thought he was around 21. It was his duty before selling whiskey to him to make sure that he was over 21.
The case of Voves v. United States, 7 Cir., 249 F. 191, is also much different from this case. There the government’s conduct misled the defendant into believing that the Indian decoy was a Mexican. Here the government made no respresentation whatsoever. Something more than the mere use of decoys by the government is necessary to raise an issue of entrapment [181]*181or estoppel. Goldstein v. United States, 7 Cir., 256 F. 813; Casey v. United States, 276 U.S. 413, 48 S. Ct. 373, 376, 72 L.Ed. 632. Even the dissenting opinion of Mr. Justice Brandéis in the last cited case, so strongly relied on in the dissenting opinion of Mr. Justice Davis herein, states: “The government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature.” In that case there was evidence that the officers instigated and induced the commission of the crime, or at least that is the basis upon which the opinion of Mr. Justice Brendeis rests. No one provoked or created the crime here, other than the defendant himself.
There is nothing in the record to indicate that Jerry or the officers did anything in the way of inducing or procuring defendant to sell the whiskey to Jerry other than to place him at the bar with money in hand to purchase the whiskey in the ordinary course of trade. The evidence here comes squarely within the rule stated in the majority opinion in the Casey case written by Mr. Justice Holmes wherein he stated: “Furthermore Casey according to the story, was in no way induced to commit the crime beyond the simple request of Cicero to which he seems to have acceded without hesitation and as a matter of course. * * We are not persuaded that the conduct of the officials was different from or worse than ordering a drink of a suspected bootlegger. ’ ’ The court in the Casey case divided on a fact issue as to whether the officers instigated or induced the crime. There is no evidence of inducement or instigation here.
The decided weight of authority holds that defendant’s ignorance that the buyer was a minor, or bona fide belief that he was of legal age, is no defense unless expressly made so by statute. Annotation 115 A.L.B. 1230. Our statute does not recognize this as a defense.
The defense of entrapment is an affirmative one, and the burden of proving it is on defendant if he would rely on it. People v. Braddock, 41 Cal. (2d) 794, 264 Pac. (2d) 521; People v. Gutierrez, 128 Cal. App. (2d) 387, 275 Pac. (2d) 65; [182]*182People v. Lee, 9 Cal. App. (2d) 99, 48 Pac. (2d) 1003. There being no proof in the record sustaining the theory of entrapment the court properly refused to instruct the jury on the question.
Also it should be noted that defendant himself did not suggest that he was induced or lured into the offense through entrapment. He denied that he sold liquor to Gallagher. The rule is that the defense of entrapment is not available to one who denies commission of the offense. Annotation 33 A.L.R. (2d) 910. Had the issue of entrapment been properly presented in the ease by some evidence on behalf of defendant, then it would also have been proper for the state to show, as it attempted to do here, that the officers were acting-in good faith and in the belief based upon reasonable information that defendant was engaged in selling- whiskey to minors contrary to law. Compare Annotation 33 A.L.R. (2d) 908.
The suggestion that the officers of the law acted in violation of the law declared in R.C.M. 1947, section 10-617, in procuring the evidence against defendant is far fetched. But if they did violate the law, that does not give the defendant here the green light to violate the law with impunity.
The defendant attempted to show that the testimony which would have been given by the witness Gallagher was wilfully suppressed by the state, and that as a result of this the jury should have been admonished that the so-called suppressed evidence should be presumed to be adverse to the state.
There was no obligation upon the state to call the witness Gallagher. The witness was available to either party. Upon the trial of a misdemeanor as is the charge in this case the state may not be compelled to call any particular witness even though his name is endorsed on the information. Compare State v. Vandervoort, 57 Mont. 540, 189 Pac. 764. See C. J., Criminal Law, section 2132 et seq., page 845; 23 C.J.S., Criminal Law, section 1017. Counsel for the defendant may comment in his argument to the jury upon the failure of the state to put a witness upon the stand, as undoubtedly defendant’s counsel did [183]*183in this case. The point is not that the state has suppressed evidence. The issue is rather what weight the jury shall give to the prosecution’s witness, absent the testimony of Gallagher.
There is no merit in the argument that the state’s case presented only the evidence of accomplices. See State v. Jenkins, 66 Mont. 359, 213 Pac. 590.
The record does not show that there was any evidence offered by defendant and excluded tending to show that Gallahger appeared of legal age as stated in the dissenting opinion of Mr. Justice Anderson, aside from the possibility that Jerry’s photograph taken more than a year later might have had that tendency. Adroit counsel for defendant does not contend that there was any evidence excluded by the court which tended to show that Jerry Gallagher appeared of legal age aside from his photograph. As before stated, that exhibit was properly excluded.
We have considered other questions discussed in the briefs but find no prejudicial error in the record.
The judgment and order appealed from are affirmed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICE BOTTOMLY, concur.