People v. De Clerk, Docket No. 19266
| Decision Date | 12 February 1975 |
| Docket Number | No. 1,Docket No. 19266,1 |
| Citation | 58 Mich.App. 528,228 N.W.2d 447 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur DE CLERK, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
John M. Kamins, Honigman, Miller, Schwartz & Cohn, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert Horn, Asst. Pros. Atty., for plaintiff-appellee.
Before QUINN, P.J., and BASHARA and MAHER, JJ.
Defendant was convicted in a bench trial of violating the Michigan Weights and Measures Act, M.C.L.A. § 290.631; M.S.A. § 12.1081(31), and was sentenced to one day in jail.
It is undisputed that on August 9, 1973, Mr. Ronald R. Reedy, a food inspector for the Michigan Department of Agriculture, the sole prosecution witness, entered a Wrigley Supermarket to test the weight of the contents of pre-packaged meat in the display case. He testified that of the 40 packages tested, 33 weighed less than the marked weight. He further testified that above the meat display there as a picture of the defendant which described him as the 'meat manager' or the 'master butcher'. 1 Mr. Reedy further testified that defendant greeted him when he entered the store; that defendant assisted him in checking the weights; that he had spoken to the defendant in the meat department on one or two prior occasions; and that defendant and the store manager were shown copies of the report. On cross-examination, Mr. Reedy testified he did not know defendant's responsibilities as meat manager.
The record also disclosed that, along with defendant, Wrigley's Supermarket was charged with the violation of the statute in question. At a separate proceeding, Wrigley's pled guilty to the charge and was fined.
Defendant moved for a directed verdict of acquittal at the close of the people's proofs, arguing that the prosecution had failed to establish a prima facie case. The motion was denied. 2
The issue dispositive of this appeal is whether the trial court erred in denying defendant's motion for a directed verdict.
M.C.L.A. § 290.631; M.S.A. § 12.1081(31), reads in pertinent part:
'Any person who, by himself or by his servant or agent, or as the servant or agent of another person, performs any of the acts enumerated in this section shall be guilty of a misdemeanor.
'(e) Sell, or offer or expose for sale, less than the quantity he represents of any commodity, thing or service.'
Our research discloses no reported Michigan decisions construing this statute. It is then incumbent upon us to analyze the acts which must be proven to uphold a conviction. Under the express terms of this statute, a defendant may be held responsible for selling or offering or exposing for sale short-weight meat if (1) he (defendant) did it by himself, or (2) if it was done by his (defendant's) servant or agent, or (3) if the act was done by him (defendant) as an agent or servant of a principal.
The trial court, in considering a defendant's motion for a directed verdict of acquittal or dismissal in a criminal case, must look at the people's proofs and determine whether there is any evidence at all, either direct or circumstantial, on each material element of the offense. People v. Brown, 35 Mich.App. 153, 192 N.W.2d 281 (1971). If there is no evidence at all on any of the elements, the motion must be granted.
A review of the transcript reveals that there was no evidence that the defendant did the short weighing himself, nor that it was done by his servant or agent. When defendant produced his defense, a defense witness, Mrs. Wrona, who was a former employee of Wrigley's Supermarket, testified that she had inadvertently failed to properly adjust the pricing-labeling machine. She thus testified that it was by her neglect that the short weighing resulted. The defendant testified that although he had the responsibility for spot checking Mrs. Wrona's work, he did not have the authority to hire or fire her. Since this case presents a motion for directed verdict, we decline to address the question of whether Mrs. Wrona was defendant's servant or agent.
We are not unmindful of the sometimestated rule that a reviewing court will affirm the...
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People v. Declerk
...sale, less than the quantity he represents of any commodity, thing or service." The Court of Appeals reversed the conviction. 58 Mich.App. 528, 228 N.W.2d 447. We a. The Prosecution's Case Mr. Ronald R. Reedy, an employee of the Michigan Department of Agriculture, Food Inspection Division t......
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