In re CLAY MARLEY, on Habeas Corpus, 29 Cal. 2d 525

SCHAUER, J. Petitioner, the proprietor of a meat market, was convicted of a violation of

section 12023 of the Business and Professions Code, and sentenced to ninety days in the county jail. The mentioned

section provides as follows: “Every person who by himself or his employee or agent, or as the employee or agent of another, sells any commodity, at, by, or according to gross weight or measure, or at, by, as, of, or according to any weight, measure or count which is greater than the true net weight, ... is guilty of a misdemeanor.” Petitioner seeks release through habeas corpus on the ground that the quoted statute is unconstitutional as it is sought to be applied to the facts here shown. With this position we are compelled to disagree.

The record discloses that on or about March 22, 1945, an employe of the Office of Price Administration, named Mrs. Punteney, accompanied openly by one other woman (named Mrs. Sampson) and surreptitiously by two men (one of them named Delaney), all of the same calling, appeared at the counter of petitioner’s meat market in Los Angeles County and requested of petitioner’s clerk and employe, one Dennis, that the latter sell her one veal steak and four or five lamb chops. Dennis weighed the selections, told Mrs. Punteney and Mrs. Sampson tfie respective prices, and wrapped the meat. Mrs.

Punteney then showed Dennis her “identification” and summoned Delaney “who was waiting outside the door,” and together they checked the weight of the meat, which was found to be less than that which would correspond, according to Office of Price Administration price charts posted in the market, to the prices charged. About two weeks later Delaney signed the complaint upon which petitioner’s conviction is based. Dennis was also named as a defendant, was convicted, and was penalized by a $100 fine.

It is undisputed that petitioner did not participate personally in the transaction here involved, was absent from the premises at the time it occurred, and had at no time instructed Dennis to give short weight. The general rule of law as repeatedly enunciated and emphasized by the courts of California and of other jurisdictions is that a master or principal before he can be held criminally responsible for the act of an employe or agent must be proved to have “knowingly and intentionally aided, advised, or encouraged the criminal act. ’’(See People v. Doble (1928), 203 Cal. 510, 515 [265 P. 184] ; United States v.

Food & Grocery Bureau of So. Cal. (1942), 43 P.Supp. 966, 971.) Thus, in People v. Green (1913), 22 Cal.App. 45, 50 [133 P. 334], cited and followed in the Doble case, the court declared that “Before one can be convicted of a crime by reason of the acts of his agent a clear case must be shown.

The civil doctrine that a principal is bound by the acts of his agent within the scope of the agent’s authority has no application to criminal law. (1 McLain on Criminal Law, § 188.) While false pretenses may be made to an agent of the person defrauded, yet when made by an agent they must be directly authorized or consented to in order to hold the principal, for authority to do a criminal act will not be presumed. (1 McLain on Criminal Law, § 683.) ” The same salutary principle was reiterated in People v. Armentrout (1931), 118 Cal.App.Supp. 761, 762 [1 P.2d 556], and in People v.

Jarvis (1933), 135 Cal.App. 288, 294 [27 P.2d 77], and, possessing the attributes of natural justice, is firmly entrenched in our jurisprudence.

Other statements of the rule appear at pages 559-561 of 4 California Jurisprudence 10 Year Supplement; and also at pages 149-150 of 22 Corpus Juris Secundum, wherein it is pointed out that ‘1 The civil doctrine that a principal is bound by the acts of his agent within the scope of the agent’s authority . . . has no application, to criminal law since in order to render a person. criminally liable it is essential that he have the requisite criminal intent at the time that the supposed criminal act was commit,i ed.

In other words, specific intent cannot be imputed to a person through an agent, without the principal’s direct participation in the criminal act. Similarly, it has been held that as regards criminal liability for participation in a crime the relation of master and servant is not recognized.

Therefore, the mere relation of principal and agent or of master and servant does not render the principal or master criminally liable for the acts of his agent or servant, although done in the course of his employment; it must be shown that they were directed or authorized by him, and a master is not criminally, liable for acts, of his servant done without the knowledge or consent of the master and in a place not under his control. ’ ’ In limited qualification of the general rule, however, legislative bodies in California as well as in other jurisdictions have adopted various statutes positively forbidding certain acts and imposing criminal liability upon the master if the act is knowingly performed by his servant' within the scope of the latter’s authority. (See,43 L.R.A.N.S. 11-37.) Such statutes have dealt with the sale of intoxicating liquor (People v.

Pera (1918), 36 Cal.App. 292, 304 [171 P. 1091]); of pure foods and drugs (People v. Schwartz (1937), 28 Cal.App.2d Supp. 775 [70 P.2d 1017]; In re Casperson (1945), 69 Cal.App.2d 441 [159 P.2d 88]); and with the operating of gaming establishments and of saloons, and have been upheld by the courts (see 43 L.R.A.N.S. 11-37; cf. 35 Am.Jur. 1042-1043, § 602; 115 A.L.R. 1226-1236; 28 A.L.R. 1382-1394).

Other instances in which criminal responsibility has been imposed despite lack of specific knowledge, direction or encouragement by the employer of the criminal act on the part of the servant are listed in Commonwealth v. Mixer (1910), 207 Mass. 141[93 N.E. 249, 20 Ann.Cas. 1152, 31 L.R.A.N.S. 467, 468], Examples are the driving of an unregistered automobile (Feeley v. Melrose (1910), 205 Mass. 329, 334 [91 N.E. 306, 137 Am.St.Rep. 445, 27 L.R.A.N.S. 1156]); being present where gaming implements are found (Commonwealth v. Smith (1896), 166 Mass. 370 [44 N.E. 503]); obstructing a highway (Commonwealth v.

New York Central & Hudson River Railroad (1909), 202 Mass. 394 [88 N.E. 764, 132 Am.St.Rep. 507, 16 Ann.Cas. 587, 23 L.R.A.N.S. 350]); being present where implements for smoking opium are found (Commonwealth v. Kane (1899), 173 Mass. 477 [53 N.E. 919]); and the killing for sale of an animal under a designated age (Commonwealth v. Raymond (1867), 97 Mass. 567).

Such exceptions are also recognized in the statement of the prevailing principles in 22 Corpus Juris Secundum 150, supra, by the observation that “under statutes positively forbidding certain acts irrespective of the motive or intent of the actor, a principal or master may be criminally liable for his agent’s or employee’s act done within the scope of his employment. . .

And in the field of weights and measures, the rule is, as stated in 68 Corpus Juris 165-166, sections 24, 25, that where, as here, the statute provides that “whoever, himself or by a servant or agent, is guilty of giving false or insufficient weight or measure shall be punishable, evidence of giving short weight by defendant’s servant in his absence warrants a conviction of defendant. . . . [W]here qualifying words such as knowingly, intentionally, or fraudulently are omitted from provisions creating the offense it is held that guilty knowledge and intent are not elements of the offense. . . .

These statutes make the seller the guarantor of the weight and quantity of the commodity sold without regard to his intent or knowledge.” Cases in which the stated rule has been applied are People v. Beggs (1945), 69 Cal.App.2d Supp. 819 [160 P.2d 600] ; Commonwealth v. Sacks (1913), 214 Mass. 72 [100 N.E. 1019, Ann.Cas. 1914B 1076, 43 L.R.A.N.S. 1]; Smith v. State (1931), 223 Ala. 346 [136 So. 270]; State v. Weisberg (1943), 74 Ohio App. 91 [55 N.E.2d 870, 872] ; Great Atlantic & Pacific Tea Co. v. District of Columbia (1937), 89 F.2d 502.

The principle upon which such holdings are based is expressed as follows in State v.

Weisberg (1943), supra, at page 872 of 55 N.E.2d: “There are many acts that are so destructive of the social order, or where the ability of the state to establish the element of criminal intent would be so extremely difficult if not impossible of proof, that in the interest of justice the legislature has provided that the doing of the act constitutes a crime, regardless of knowledge or criminal intent on the part of the defendant. “In these cases it is the duty of the defendant to know what the facts are that are involved or result from his acts or conduct.

Statutes punishing the sale of adulterated foods or prohibiting the sale of intoxicating liquor to minors are most frequently found in this class of cases. The use of false weights could well come within this field of the law.” v ' In the Beggs case, supra, 69 Cal.App.2d Supp. 819, the defendants had, in violation of

section 26510 of the Health and Safety Code, sold sacks of onions which they represented to be of the weight stated on the respective labels of such sacks which defendants themselves had purchased but which actually, without defendants’ knowledge, weighed less.

Judge Bishop, authoring the opinion for the Appellate Department of the Superior Court, applied and followed the stated exception to the general rule (requiring intent as a prerequisite to criminal liability) and in so doing observed (at page 822) that “Neither knowledge nor an intent to defraud is made a condition of the statute, with the result that the act of selling misbranded goods constitutes the offense, though done, as it doubtless was in the case before us, both in happy ignorance of the fact that the legend on the sacks was incorrect and without any intention of defrauding anyone.

This conclusion is supported by cases analogous to ours, decided in this state [citations]. ” petitioner complains that he was denied due process and the equal protection of the laws in that he was not permitted to prove that he came within the provisions of subdivisions 4 and 6 of

section 26 of the Penal Code. Such provisions are, in material part, as follows: “All persons are capable of committing crimes except those belonging to the following classes: . . . Four. Persons who committed the act . . . under an ignorance or mistake of fact, which disproves any criminal intent . . . Six.

Persons who committed the act . . . through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence. ’ ’ Without any implication as to the legal propriety of his claim, as such, it is to be noted that the petitioner was properly allowed to introduce evidence tending to show that the prohibited act (the short weight element of the sale) was committed by the clerk by accident or mistake of fact, but ©n this issue the finding was adverse to the two defendants.

The facts that petitioner was not present when the short weight sales were made and that he had not instructed the clerk to sell short weight, do not bring petitioner within the code provisions above quoted. He shows no other evidence or ‘ offer of evidence to that end.

Whether some hypothetical situation (such, for example, as a conspiracy by a clerk with others, deliberately to injure an employer) not shown by the. record here, might properly be shown and be held to bring an employer within the purview of the code provisions, we do not, upon this application for habeas corpus, in the light of the record, have occasion to determine.

Inasmuch as the Legislature of this state has seen fit, in tÉe exercise of its power, to impose upon petitioner criminal liability for the offense which was committed by his employe, we cannot, in the light of the authorities above cited, hold that the statute as written, or as applied here, invades a constitutional right of the petitioner.

The seemingly (upon the record before us) disproportionate severity of the penalty assessed by the trial judge against this petitioner, as compared to that meted out against his codefendant, who was the primary actor, does not constitute a legal basis for intervention by habeas corpus. The writ of habeas corpus heretofore issued is discharged and petitioner is remanded to custody. Gibson, G. J., Edmonds, J., Traynor, J., and Spence, J., concurred.