quality control

Adam and Bailey, brothers, operated an illicit still. they customarily sold to anyone unless they suspsected the person of being a revenue agent or an informant. One day when Adam was still alone, he was approached by Mitchell, who asked to buy a gallon of liquor. Mitchell was in fact a revenue officer. After Adam had sold him the liquor, Mitchell revealed his identity. Adam grabbed one of the rifles that the brothers kept handy in case of trouble with the law, and shot and wounded Mitchell. Other officers, hiding nearby, overpowered and arrested Adam.

Shortly thereafter, Baily came on the scene. The officers in hiding had been waiting for him. One of them approached him and asked to buy liquor. Bailey was suspicious and refused to sell. The officers nevertheless arrested him.

Adam and Bailey were charged with conspiracy to violate revenue laws, illegal selling of liquor, and battery of the officer.

On the charge of battery, which statement concerning Adam and Bailey is true?

(A) Neither is guilty.
(B) Both are guilty.
(C) Adam is guilty but Bailey is not, because the conspiracy had terminated with the arrest of Adam.
(D) Adam is guilty but Bailey is not, because Adam's act was outside the scope of the conspiracy.

Correct Answer: Depends on who you ask.

Barbri says (B) because the rifles were kept "in case of trouble with the law" making this act in furtherance of the conspiracy foreseeable.

Emanuel's Strategies and Tactics book says (D) because "there are no facts, except for the rifles kept nearby, to suggest that shooting revenue agents would be part of the deal, and that wouldn't be enough to convict Bailey."

This is a released question... It must have had a correct answer at some point!... So who do we believe? I'm going with the Barbri answer.