W. T. Grant Co. v. Superior Court

ROTH, P. J.

I dissent.

A review of the record, including as it does the reasons given by the committing magistrate and the superior court judge for their orders adverse to petitioner, shows that in addition to the hearsay statement made by the store manager, considerable stress was placed on the possession by petitioner of invoices and records which would or should have revealed to the corporate management of petitioner (other than the department head and store manager) the resale of used television sets as new merchandise. 1

*288 Cross-examination of Berry, the television repair man who used to work for Grant, revealed that at least in some cases the invoices showing these duplicate sales lacked the serial numbers of the sets and it is therefore problematical how petitioner’s responsible executives “operating hundreds of stores” (admitted by the majority) and using all reasonable means of supervision, could or did become aware of such resales which it is conceded occurred five times over a span of three years and were made through petitioner.

The probabilities that five such invoices, even if clearly identifiable as documents showing resales of the same merchandise, would come to the attention of the executive management of a corporation national in scope, with hundreds of outlets, especially since the sales in question could not be considered anything other than minor and routine, are so infinitessimal as to preclude the invocation of the criminal process. There was no attempt to show which of petitioner’s executive officers, if any, had access to or a duty to inspect the invoices.

Other than the invoices, the prosecution relied on the hearsay testimony of Berry, quoted by the majority to which incidentally timely objection was made, although not on the ground of hearsay. The grounds of the objection were that no foundation had been laid, and that the question eliciting the statement was leading and ambiguous. An objection must be specific. (Evid. Code, § 353.) However, where, as here, the only evidence which the majority sees fit to detail in its opinion is a statement that was objected to and which, upon trial, could well be excluded on the grounds of hearsay, the lack of technical perfection is excusable. (Where the error in admission of evidence is serious, as it clearly was at bench, even a total failure to object is excusable. (Witkin, Cal. Evidence (2d ed. 1966) p. 1195.)

I find the majority’s rationalization of the statement as an admission of an agency relationship totally unsatisfactory, both in law and equity, as the sole premise of petitioner’s criminal liability.

I have no doubt that this criminal prosecution, which to me is demonstrably short of any evidence to hold the corporate petitioner, should be prohibited.

Finally, it appears that the statute under which petitioner is being prosecuted does not provide for a fine without imprisonment (Pen. Code, §§ 489, 672), and I don’t know how one imprisons a corporation. Criminal prosecution of a corporation such as petitioner under such circumstances *289 is not only waste motion but lends itself to interpretation as calculated oppression.

I would grant the writ.

Petitioner’s application for a hearing by the Supreme Court was denied March 30,1972.

It should be noted that although Cándelos, the manager of the television department is joined as a defendant, the store manager Hill who is charged with the hearsay statement, is not made a codefendant.