*1 finality as attain question would judgment appeal, Ms to test having opportunity these issues adjudication ad- their the merits of court appellate before an litigation would termination to him. Such verse and substantial legal practice principles sound with accord be determined McMahon should appeal taken justice. The Cal.App.2d 711, 721-722 Drew, 75 (Metcalf v. merits. on its 488].) to dis- observations, the motion foregoing In line with of the former taken on behalf appeal granted as to miss is granted appeals as to all likewise It is special administrator. except behalf McMahon on Ms own J. taken herein John the motion is denied. 21, 1945, as to which December that of Carter, J., Tray- J., Edmonds, J., Gibson, J., Shenk, O. Schauer, J., concurred. nor, J., and No. In Bank. Dec. 4748. [Crim. 1946.] Corpus. MARLEY, In re on Habeas CLAY *2 Kellogg Hiram for Petitioner. L. Cahill and T. M. Attorney (Los Angeles), Ray Chesebro, City Donald M. L. City Attorney, Bland, Deputy and L. Redwine, Assistant John City Attorney, Respondent. market, meat Petitioner, of a proprietor SCHAUER, J. of the Business section 12023 a violation of
was convicted of ninety days Code, and sentenced and Professions as follows: provides county jail. The section mentioned agent, as employee or or “Every himself or person who by, any commodity, at, another, sells agent of or as, of, measure, at, by, or gross weight or according to greater which is any weight, measure count according to guilty weight, ... of a misdemeanor.” true than the net ground through on release Petitioner seeks sought as it is quoted is unconstitutional statute that position here With this we the facts shown. applied disagree. compelled to 22, 1945, an that or about March on
The record discloses Administration, named Mrs. Price the Office of employe of (named one other woman openly Punteney, accompanied (one two men them surreptitiously and Sampson) Mrs. calling, appeared same Delaney), all of the at named County Angeles market Los meat petitioner’s counter Dennis, employe, and clerk one petitioner’s requested and and lamb veal steak four or five her one that the latter sell Punteney selections, told Mrs. and weighed chops. Dennis the meat. prices, wrapped and respective Sampson tfie Mrs. Punteney and then showed Dennis her “identification” Mrs. Delaney door,” waiting “who was outside the summoned they meat, together which was found checked according to correspond, than to be less which would price posted Price Administration charts Office Delaney charged. weeks market, prices to the About two later signed petitioner’s conviction complaint convicted, defendant, Dennis also named was based. was as undisputed peti- penalized by a It is $100 and was fine. here personally in the transaction participate tioner did not occurred, premises was at time it involved, absent from weight. give short and had at no time instructed Dennis to general repeatedly rule of law enunciated jurisdic and of other emphasized the courts California he can be held crimi tions is a master or before nally must be responsible employe agent for the act of an advised, intentionally aided, proved “knowingly to have encouraged (1928), ’’(See People criminal act. v. Doble ; v. Food & Cal. P. United States Groc 184] ery 966, 971.) Thus, (1942), P.Supp. Bureau So. Cal. (1913), Cal.App. v. Green P. *3 case, the court declared that cited and followed in the Doble by can of reason the acts “Before one be convicted a crime of agent a doctrine of his clear case must be shown. civil by agent principal that a of his within is bound acts agent’s authority scope application of the criminal has no to (1 188.) pre Law, law. McLain on Criminal While false § yet agent person defrauded, be an tenses made to they directly agent made when an must be authorized authority in for do principal, to to hold the to consented order (1 presumed. a criminal act will not be McLain on Criminal ” 683.) in salutary principle was reiterated Law, The same § (1931), Cal.App.Supp. 761, 118 762 People v. Armentrout (1933), Cal.App. v. P.2d and in Jarvis 135 [1 288, 77], and, possessing 294 of natural P.2d attributes [27 firmly justice, jurisprudence. in our Other is entrenched state pages at 559-561 of appear ments of rule 4 California Jurisprudence Supplement; pages Year and also 149- 10 at 22 Corpus Secundum, pointed 150 wherein out of Juris is ‘1 The civil that a is bound the acts principal that doctrine agent scope agent’s authority his of . . . has of within the application, no law since in render a criminal order person. 528 requisite
criminally is have the crimi- liable it essential he supposed act was the time that criminal com- nal intent at mit,i words, specific imputed other intent cannot ed. direct through agent, principal’s par- a person held Similarly, in the criminal act. it has been ticipation liability in a crime the regards participation criminal recognized. Therefore, of and is not master servant relation agent or master and principal mere relation or master does not render servant agent servant, although in of his done for the acts liable they employment; it must of his be shown were the course criminally, him, and a master not or authorized directed acts, done without liable for servant ’’ place master under his control. consent of the general rule, however, legis qualification of the limited jurisdictions well as in other in California as lative bodies forbidding certain adopted positively various statutes have liability upon the if act master imposing acts scope of servant' within the knowingly performed (See,43 11-37.) authority. L.R.A.N.S. Such statutes latter’s intoxicating liquor (People v. Pera with the sale of have dealt pure 1091]); 304 foods and (1918), Cal.App. 292, 36 [171 P. Cal.App.2d Supp. 28 (1937), 775 (People v. Schwartz drugs Cal.App.2d Casperson (1945), 69 441 1017]; In P.2d re [70 gaming establish 88]); operating and with (see saloons, upheld the courts and have been ments and 602; 1042-1043, 35 Am.Jur. 115 11-37; cf. L.R.A.N.S. § 1382-1394). Other 1226-1236; A.L.R. instances A.L.R. despite lack responsibility imposed has been which criminal encouragement by the knowledge, direction em specific are listed part on the servant ployer of the criminal act (1910), Mass. v. Mixer 141[93 N.E. Commonwealth 468], Examples 467, L.R.A.N.S. 249, Ann.Cas. (Feeley v. Mel unregistered automobile driving are the of an Am.St.Rep. 329, 334 N.E. (1910), rose 205 Mass. gaming imple 1156]); being present where 445, 27 L.R.A.N.S. (1896), 166 Mass. (Commonwealth v. Smith ments are found *4 (Commonwealth highway 503]); obstructing a 370 N.E. [44 (1909), River 202 Hudson Railroad v. New York Central & 587, Am.St.Rep. 507, 16 Ann.Cas. 764, N.E. 132 Mass. 394 [88 being implements present 23 350]); L.R.A.N.S. (Commonwealth (1899), v. opium Kane smoking are found killing of an the for sale 919]); 173 N.E. Mass. 477 [53 age (Commonwealth Raymond designated a v. animal under (1867), 567). 97 Mass. the recognized are also statement of the exceptions
Such 150, prevailing principles supra, 22 Corpus Juris Secundum positively forbidding the observation that “under statutes actor, the irrespective certain acts of the motive or intent of agent’s liable for his master scope employee’s employment. act done within . . measures, weights in the field of rule
And
165-166,
24, 25, that
Corpus
as stated in 68
Juris
sections
where,
“whoever,
here,
provides
the statute
himself
agent,
guilty
giving
or insufficient
a servant or
of
false
giving
weight
punishable, evidence of
or measure shall be
short
weight
in his absence warrants a con
defendant’s servant
qualifying
.
words such as
viction of defendant.
. .
[W]here
fraudulently
knowingly, intentionally, or
are omitted from
guilty knowledge
provisions creating
it is held
the offense
. These
of the offense. .
statutes
and intent are not elements
quantity
guarantor
of
make
seller
of
commodity
regard
his intent or knowl
sold
applied are
edge.”
rule has been
Cases which
stated
Supp. 819
People Beggs (1945),
Cal.App.2d
v.
[160
N.E.
;
(1913),
v.
Mass. 72
Commonwealth Sacks
[100
600]
1076,
1];
v. State
1914B
43 L.R.A.N.S.
Smith
Ann.Cas.
Weisberg (1943),
270];
v.
(1931),
petitioner equal protection per of the laws in that he was not mitted prove provisions to that he came within of sub 4 and 6 pro divisions of section 26 of the Penal Code. Such are, visions part, persons material as follows: “All capable committing except belonging crimes those to following classes: . . . Four. who Persons committed ignorance fact, act . . . under an or mistake of which dis proves any criminal intent . . . Six. Persons who committed through by the act . . accident, ap misfortune or when it pears design, intention, there culpable was no evil ’’ negligence. any implication legal Without as to the pro priety claim, such, petitioner it is to be noted that the properly tending was allowed evidence to introduce to show prohibited (the sale) that the act short element of the committed the clerk fact, was accident or mistake of but finding ©n this issue the was adverse to the two defendants. petitioner present The facts that was when short weight sales were made and that he had not instructed the weight, bring petitioner clerk to sell short do not within the provisions quoted. code He above shows no other evidence or ‘ hypothetical offer of evidence to that end. Whether some (such, example, conspiracy situation as a a clerk with others, injure an not shown the. deliberately employer) might here, properly record be shown and be held bring purview employer provisions, not, within the of the code we do application corpus, light for habeas in the upon determine. record, have occasion to Legislature fit, Inasmuch as the of this state has seen power, impose upon petitioner tÉe exercise of its liability employe, for the offense which was committed light cannot, cited, we of the authorities above hold that written, applied here, the statute as or as invades a constitu *6 seemingly right petitioner. (upon tional The the record of the severity us) disproportionate penalty assessed before judge against petitioner, compared the trial this as to that codefendant, actor, against primary his who was the meted out legal a for intervention does not constitute basis habeas heretofore corpus. The writ of issued is dis custody. charged petitioner is remanded to and Edmonds, Gibson, J., J., Traynor, J., Spence, J., and G. concurred.
CARTER, J.I dissent. Broadly speaking brings sharp case into focus the clash conflicting philosophies social which reflected in between are statutory provisions. and interpretation of constitutional upon placed That should the burden be an innocent and in in itself employer, engaged a business not harmful blameless and of risking of conviction of a crime service public, to the not, mistake, intentional or of jail a sentence because of the majority opinion question in employee? The answers this his my agree. I this conclusion cannot the affirmative. With general public policy of there are no considerations opinion long departure warrant a from estab- welfare which such a necessary element of that criminal intent is a lished rule imagined in- can which render be crime. Various situations justice, construc- shocking sense of tolerable, and to one’s in- majority on the statute here opinion placed tion relating passed sale could be statutes volved. Similar make cashing checks which would railroad tickets or railway banking corpora- a criminally the officers of liable overcharging in employee made an tion for an error in the changing a customer ticket or short customer for a in such an event the occurrence of Upon cashing of a check. was railroad or bank state a remote section president and operating, other officers of the railroad or might in a metropolitan bank reside who area hundreds of place miles where the crime from was committed be could jail alleged arrested sent to' an violation committed by a clerk bank teller. merchant, ticket Likewise a who military had been inducted into service and left who his busi- manager, charge jail be ness could sent to for violation during military his of such a statute committed absence he service when had no whatever of what tak- was place ing place in his of business. such a case there is employer nothing protect himself, can do to an the act entirely depends employee one which use of his impossible and it is for the employer own faculties and senses degree any accuracy with whether to determine the facul- functioning properly ties and senses working accurately during considerations, hours. These all any my outweigh advantage benefit opinion, interpretation an of a gained public statute which to the and blameless re- places upon employer an innocent employee. sponsibility for act | involved is eorre*ct specific issue here construction quoted 12023 of the Business Professions of section Code opinion. (1) be construed to majority Should mean here) (petitioner that the master wholly though he is innocent of fault or liable thereunder even *7 authorize, to, acquiesce assent direct or blame—did not (2) employee, that he shall not be act of or denounced his authorized, to, acqui- assented directed unless he criminal unlawful act of his ? esced the reasonably susceptible the is is It clear the section certainly equally is at least amenable construction; second interpretation. first the second The statute to either the by agent. his principal of a unlawful action condemns agent must be author- words, the unlawful action other authority to sell specifically generally not under broad ized that the It will be remembered merchandise. principal’s his by by agent. unlawful act oneself statute condemns (Webster’s New “unaided.” “By “alone” oneself” means “or expression That followed 367.) Diet., p. Int. is latter case that in the agent” must indicate his and had aid procured has acting He alone. not He is still acting together—in concert. They employee. guilty he act before unlawful must commit who one agents physi- to assistance, that he instructs he has but hang if But even the scales the act denounced. cally commit by numerous compelled construction is equally the second factors. respect of the law with comprehensive discussion
In a Francies Bowes liability fault Professor pur- of statutes suggesting tests for the construction Sayre, in says: “How then can one liability, such impose porting re- do and which do not practically which offenses determine creating the offense is en- rea, the statute quire mens Although requisite knowledge ? no hard and tirely as to silent principles stand out drawn, be two cardinal fast lines can the determination must turn. upon which All crimi- the character of offense. “The relates to first singling purpose double in a sense serve the nal enactments punishment or correction wrongdoers purpose for the out importance But regulating social order. often the and of outweighs primarily Crimes created one far other. wrongdoers singling out individual purpose for the commonly requiring are the ones punishment or correction merely regulatory nature are rea; police offenses of a mens any guilty frequently irrespective of intent. enforceable depends upon possible penalty. “The second criterion if the serious, particularly punishable If offense this be weighs individual interest of defendant imprisonment, heavily proof guilty of a conviction without mind. too to allow entirely subject free from moral blameworthi- defendants To revolting prison sentences is to the possibility to the ness community justice; and no law which violates this sense of long punishable endure. can Crimes fundamental instinct ordinarily require proof of sentences, therefore, prison with 55, 72.) In the instant case (33 guilty intent.” Col.L.Rev. (Bus. misdemeanor. & Prof. a violation of the statute is a punishable by supra.) And a misdeméanor Code, 12023, § county exceeding imprisonment $500 a fine not (Pen. jail exceeding months, Code, 19). both six § recently given consideration to a similar This court has declaring involving the for- problem in the cases a statute any transport narcotics.” feiture of a motor vehicle “used 1941 Ford (Health Code, 11610.) v. One & Saf. § speak- this court Truck, Stake 26 Cal.2d *8 carry the owner’s ing car to narcotics without of the use of the 534 (at 506)
consent p. states : “It is true that the Health and Safety expressly exempt Code not does from confiscation automobile taken in the instance the owner’s con first sent transport and used to but it been narcotics has construed authorizing as not under such circumstances. The forfeiture reasoning leading contrary to this conclusion is that a determi deprivation nation would amount to an unconstitutional property process (People without due law One 1937 v. Plymouth (98 6, supra Cal.App.2d 65 750)]), P.2d [37 susceptible interpretations, where a statute is of two one of satisfy guarantees, if possible would constitutional Co, legislation. (Bodinson courts uphold Mfg. will v. Emp. Com., 17 Cal.2d 326-327 P.2d [109 California ” 935].) [Emphasis Sport v. One 1941 Buick added.] Coupe, posses Cal.2d P.2d concerned the sion, car owner, unknown to the of narcotics vehicle - guest operator of the owner and of the car. The trial also, judgment (See, court’s of forfeiture was reversed. Peo ple Gory, 433].) v. Cal.2d involving There are cases various statutes where the inno employer cent is held liable for the acts of his employee. (See 11; 84.) Col.L.Rev. L.R.A.N.S. liquor making Where an sells to a minor he is very employed make, that he decision has been deciding particular when he and whether a cus should sell employer tomer is a minor. The effect confers him authority selling to violate or not violate law liquor. employer that the would supposed But it is not to be give the correct employee to authorize the short In the and adulterated food pure the sale of merchandise. employer possession oases has and control merchan integrity of an peril at his and is not asked to warrant dise employee. remedy in instant case. appropriate corpus'is
Habeas corpus the con- availability habeas to test discussing “ ‘It must stitutionality has said: of a statute this Court corpus pre- is the forgotten never be writ of duty liberty higher no there is safeguard personal cious . in- the rule is not so unimpaired it . . than to maintain exceptional circumstances yield flexible that remedy writ of habeas afforded the need for the ’ in which There are other situations . . apparent. *9 jurisdiction, re- hut to used, is not as a test habeas or is otherwise he raised question of law that cannot a view ordinary inadequate. procedure to render the important so justify probable cause to whether there Thus, it lies to test holding for trial. . . magistrate petitioner committing charges complaint public a of- It lies to test whether also juris- falls within the though question even fense . . . (In appeal.” be raised on court and of the trial diction person 22].) Where a 488, 493 Bell, re 19 Cal.2d a erroneous construction of by virtue of an imprisoned constituting crime, he should acts not or for statute (See Corryell, 22 Cal. re corpus. be released on Corpus, 212; C.J.S., Habeas Kearny, 55 Cal. 178; parte Ex every at law is a basis mean that error 17.) This does not § the crimi- interpretation However correct for the writ. constitutionality, great like the nal issue statutes significance and widespread in view of its public importance but only the case under consideration bearing upon not its other cases. discharged from my petitioner should opinion
custody. 17199). In Bank. Dec. (S. No. No. F. 1946.] A.
[L. and Estate WILLIAM RON Guardianship of Person LEACH, RONALD LEACH, a Minor. WILLIAM ALD McCALLOM, MAE Re v. E. etc., Appellant, Minor spondent.