People v. Declerk

• Decision Date: 02 May 1977
• Docket Number: No. 10,10
• Citation: 400 Mich. 10,252 N.W.2d 782
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Arthur DeCLERK, Defendant-Appellee. /April Term. 400 Mich. 10, 252 N.W.2d 782
• Court: Michigan Supreme Court

Page 782

252 N.W.2d 782

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Arthur DeCLERK, Defendant-Appellee.

No. 10/April Term.

400 Mich. 10, 252 N.W.2d 782

Supreme Court of Michigan.

May 2, 1977.

William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training and Appeals, Timothy A. Baughman, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Honigman, Miller, Schwartz & Cohn, Detroit (Jason L. Honigman and John M. Kamins, Detroit, of counsel), for defendant-appellee.

RYAN, Justice.

The defendant, Arthur DeClerk was convicted in the Recorder's Court for the City of Detroit of a violation of Sec. 31(e) of the Weights and Measures Act of 1964, M.C.L.A. § 290.631(e); M.S.A. § 12.1081(31)(e).

The specific portion of the act under which he was charged and convicted by the court sitting without a jury provides:

"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."

The Court of Appeals reversed the conviction. 58 Mich.App. 528, 228 N.W.2d 447. We affirm.

I

a. The Prosecution's Case

Mr. Ronald R. Reedy, an employee of the Michigan Department of Agriculture, Food Inspection Division testified that he entered a Wrigley Supermarket located in the City of Detroit on August 9, 1973 where he checked 40 packages in the refrigerated self-service counter in the meat department and found that 33 weighed less than the amount printed thereon. He said the defendant's picture bearing the legend "Meat Both DeClerk and Wrigley were charged with violating the statute. The corporate defendant pleaded guilty; DeClerk pleaded not guilty.

Manager" or "Master Butcher", he was not sure which, was posted behind the meat counter. He testified the defendant greeted him and assisted in weighing the packages. Mr. Reedy stated that he did not know the responsibilities of a meat manager, and that he did not know anything about the assignment of responsibility within the Wrigley Supermarket chain.

The prosecutor's proofs consisted solely of the testimony of Mr. Reedy.

At the conclusion of Mr. Reedy's testimony the prosecutor rested, whereupon the defendant moved the trial court to dismiss the charge against him because the prosecutor failed to prove a prima facie case under the statute. The defendant argued that proof that defendant possessed the title "Meat Manager", without some description of his responsibilities, was an insufficient factual basis from which to infer that he was guilty of violating the statute.

The Court denied the motion.

b. The Defendant's Case

The defendant then testified in his own behalf that he was the head of the supermarket's meat department and that his title was "Master Butcher". He testified further that he did not personally wrap, weigh or price any of the tested packages, but that this duty was the responsibility of another store employee, Mrs. Wrona. He stated that his duties included cutting meat, instructing new personnel about the operation of the automatic packaging and weighing machines, and spot checking the wrapped packages for accuracy, when he had time. He also stated that he had not spot checked Mrs. Wrona's work on the day in question because he was short of help. The defendant testified that he did not hire any of the store employees, that he was Mrs. Wrona's immediate superior, and that after discovering the short weight packages he watched Mrs. Wrona reweigh and package all of the meat on display.

Mrs. Wrona also testified for the defense. She stated that the short weight packages were the result of her failure to properly adjust the automatic pricing machinery. She testified that she was preoccupied with personal problems and neglected to make correct adjustments, but that no one had instructed her to short weigh the meat.

The trial court found the defendant guilty as charged and sentenced him to serve one day in jail. In a written opinion the court denied defendant DeClerk's motion for a new trial. The Court of Appeals reversed, holding that the trial judge improperly denied "a directed verdict in defendant's favor" on motion made after the prosecutor rested. 58 Mich.App. 528, 228 N.W.2d 447.

We confine our review to two rather narrow issues:

(1) What evidence may an appellate court consider in reviewing a trial court's denial of a nonjury trial motion to dismiss the charge made at the close of the prosecution's case, and

(2) What evidence is necessary to establish a violation of Sec. 31(e) of the Weights and Measures Act of 1964, M.C.L.A. § 290.631; M.S.A. § 12.1081(31).

II

At the close of the prosecution's case, the defendant moved the court to dismiss the charge against him. Such a motion is in the nature of a jury trial motion for a directed verdict and in both jury and nonjury trials is governed by the rule that the prosecutor has the burden of producing in his case in chief some evidence as to each element of the crime charged to warrant putting the defendant to his defense. People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975); People v. Abernathy, 253 Mich. 583, 235 N.W. 261 (1931). ¹ In the case at bar, the trial court apparently found that the prosecutor had presented a prima facie case against defendant under the statute because it ruled: "In other words, I think there is sufficient facts for it to go to the jury, and it is a question of the weight of the evidence. And for that reason I am overruling the motion, or denying the motion for a directed verdict."

The Court of Appeals disagreed, and confined its review of the trial court's denial of the motion to the prosecutor's proofs, declining to follow this Court's holding in People v. Barlow, 134 Mich. 394, 96 N.W. 482 (1903), that "(i)n such a case the determination of this question involves all proof."

We have recently held in People v. Garcia, 398 Mich. 250, 256, 247 N.W.2d 547, 549 (1976), that "(a)n appellate court tests the correctness of the denial of (a motion for directed verdict of acquittal made at the close of the prosecution's proofs) by taking the evidence presented by the prosecution in the light most favorable to the prosecution * * * ." (Emphasis by the Court.) We agree with the Court of Appeals that the "better rule" in criminal cases is that "in reviewing the denial of such a motion, the appellate court should consider only the record as it existed when the motion was made." ² State v. Rocker, 52 Haw. 336, 475 P.2d 684, 691 (1970) (Levinson, J., dissenting). See also United States v. Rizzo, 416 F.2d 734 (C.A. 7, 1969); Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963). Confining the scope of our review in this fashion most effectively promotes the fundamental requirement of our criminal justice system that "the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense." Cephus v. United States, supra, 117 U.S.App.D.C. at 17, 324 F.2d at 895. To require the defendant to elect between resting on his motion to dismiss and presenting his defense in the event the motion is denied compels him to surrender one constitutional right in order to assert another, ³ a situation the United States Supreme Court has called "intolerable". Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

We, therefore, overrule People v. Barlow, supra, and hold that in reviewing a motion to dismiss for failure to present a prima facie case made at the close of the prosecution's proofs, an appellate court should look only to the evidence theretofore introduced by the prosecutor.

III

We next consider the elements of a prima facie case under M.C.L.A. § 290.631; M.S.A. § 12.1081(31).

The portion of the statute under which defendant was charged and convicted reads:

"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.

* * * "l,

The Court of Appeals held that the defendant could be convicted "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 Court reversed the conviction because "there was no evidence that the defendant did the short weighing himself, nor that it was done by his servant or agent."

The prosecutor contends that the Court of Appeals misconstrued the statute by finding, in effect, that the act of short weighing the commodity is the prohibited activity. We agree.

By its terms, the statute provides penalties for offering or exposing for sale items which are less in quantity than represented. Therefore, the fact that the record fails to reveal any evidence that the defendant (or anyone else) was the one who actually weighed the meat does not, by itself, preclude conviction.

A relevant question in this case is whether the statute creates "vicarious liability". ⁴ The issue may be stated thus: does the statute in question dispense with the requirement that the prosecution prove an actus reus by the defendant and, if so, is this defendant one of the persons enumerated therein to whom vicarious liability can attach? By its terms, the statute imposes liability upon a principal for the acts of his servant or agent. However it was not proved in the prosecution's case in chief that the employee who packaged and weighed the meat was the "servant" or "agent" of the defendant. Consequently, no guilt predicated on vicarious liability was established.

However, the prosecutor contends that the defendant...