State v. Salone

• Decision Date: 15 September 1961
• Docket Number: No. MV,MV
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 22 Conn.Supp. 482 STATE of Connecticut v. Joseph SALONE. 13-299.

Page 803

174 A.2d 803

1 Conn.Cir.Ct. 99, 22 Conn.Supp. 482

STATE of Connecticut v. Joseph SALONE.

No. MV 13-299.

Circuit Court of Connecticut, Appellate Division.

Argued May 12, 1961.

Decided Sept. 15, 1961.

Thaddeus Maliszewski, Hartford, for appellant (defendant).

Seymour A. Rothenberg, Asst. Pros. Atty., Lisbon, for appellee (state).

CIANO, Judge.

The following facts were agreed upon by the state and the defendant. The defendant is the owner of a 1949 Mack dump truck, properly registered by the owner in accordance with the statute so providing, to carry a gross weight of 30,100 pounds. The truck on March 1, 1961, was being operated by one Trombly, an employee of the defendant, in a southerly direction on route 147, a state highway in East Granby, with a load of cold-patch tar, when he was stopped by a state trooper. The gross weight of the truck when stopped was 35,200 pounds, an overload of 5,100 pounds above its registered gross weight. A warrant was issued for the arrest of the defendant as the owner of the truck.

After this agreed statement of facts was presented, testimony was then offered by the defendant as follows: The driver employee, Trombly, testified he had been an employee of the defendant for about two years and at the time that he was hired was told never to overload the truck. The truck was loaded under the supervision of a foreman of a corporation that had leased the truck. The employee received a tonnage ticket with each load. He did not look at the slip but put in in his pocket. He had to get a tonnage ticket at each load so the foreman could tell how much material was used for a particular job on a particular day. He could not recollect what had become of the ticket pertaining to this particular load.

The defendant testified that he warned his employee two years previously, when Trombly was hired, besides 'telling him right along,' not to overload. The truck, with the employee as driver, had been leased or hired out to Masco Construction Company. The defendant was to be paid on an hourly basis rather than by number of loads or tonnage for use of the truck and driver. The foreman of the leasing company controlled and had charge of the loading of the truck and directed the defendant's employee where to deliver each load. The defendant had no actual knowledge of the overloading of the truck and was never present on the job during loadings.

The defendant's reasons of appeal formulate two main issues. The first issue, which, he states, is the chief issue in the appeal, is that the court found the defendant guilty although the defendant had no knowledge, either actual or constructive, concerning the overloading of the truck. He bases this contention on his interpretation of the word 'allow' in the statute as including 'knowingly' or 'knowledge' of the defendant owner as to overloads. Therefore, it remains to be resolved whether under § 14-267 of the General Statutes the state must prove as an element of the crime knowledge by the owner, either actual or constructive, of the overloading of the truck.

The pertinent part of the statute in issue states: 'No person shall operate any commercial motor vehicle, nor shall the owner of any commercial motor vehicle allow such motor vehicle to be operated, on any public highway or bridge * * *.' The remainder of the statute sets forth the penalties for its violation and is not an issue in this appeal.

The defendant insists that the word 'allow' as used in the statute places the duty upon the state to prove actual or constructive knowledge on the part of the defendant before he can be convicted of the crime alleged under the statute. Therefore, we are required to determine and define the scope and meaning of the word 'allow' as used in the statute. Webster's New International Dictionary (2d Ed.) defines the word 'allow': 'To approve of; * * * to sanction; to accept * * * [t]o admit; concede; * * * permit * * * [Syn.] suffer, tolerate.' It further defines its use: 'Allow and permit are frequently used as convertible terms; but allow is less formal, and may imply little more than forbearance of prohibition * * *. To suffer * * * is * * * a * * * synonym for allow * * *.' We have examined the decisions of our Supreme Court of Errors wherein it attempts to define these words as used in a criminal statute, to aid us in an interpretation of the statute in question.

In State v. Poplowski, 104 Conn. 493, 497, 133 A. 671, 672, the court had before it the interpretation of a statute which provided: 'Every person entitled to the custody of any horse * * * who shall permit the same to be at large upon any highway or common, without a keeper, shall be fined. * * *' The accused was the owner of two horses which he had allowed to be at large upon a highway without a keeper. The court said that the word 'suffer,' as defined in Selleck v. Selleck, 19 Conn. 501, 'has a practically identical meaning with the word 'permit' in the statute we are considering.' Id., 104 Conn. 498, 133 A. 672. It was held that the statute was intended to embrace not only an affirmative or voluntary act of the owner or custodian but also the failure to exercise due care to restrain the horses as a reasonably prudent person would have, under the same circumstances. In Selleck v. Selleck, supra, 19 Conn. 505, the statute provided: '[I]f the owner of any ram shall suffer him to go at large * * *.' The court said: 'To suffer an act to be done, by a person who can prevent it, is to permit or consent to it--to approve of it, and not to hinder it. It implies a willingness of the mind. * * * [A]nd so the legislature understood it.'

Therefore the state may prove facts which will justify the trier in finding beyond a reasonable doubt that the motor vehicle was overloaded (1) either by the voluntary act of the owner or custodian, or (2) by the reason of his negligent failure to prevent overloading, as a reasonably prudent and careful truck operator or owner would have done under like circumstances.

In Guastamachio v. Brennan, 128 Conn. 356, 357, 23 A.2d 140, the court construed a regulation of the liquor control commission which provided that '[n]o permittee shall allow, permit or suffer' any immoral activities in or upon the permit premises. The responsibility for making effective this prohibition was placed upon the permittees.

Knowledge by the owner of the overloading is not an essential element of the crime; and to make the statute effective, the owner is held responsible, regardless of knowledge, by reason of his failure to take effective measures to prevent and prohibit conduct by those controlling the trucks under his authority. The rule of strict accountability is imposed by the statute on the owner. Knowledge is not an essential element of proof to establish the commission of a crime when the legislature sees fit to omit such an element. Id., 128 Conn., 360, 23 A.2d 140.

The legislative intent of the statute under discussion is to prevent the destruction of public highways in the state from overloaded vehicles. The heavy penalties imposed by the legislature indicate the seriousness of the crime. Once the defendant voluntarily permitted and allowed the employee and truck to be operated and hired out to an independent company, he could and should have foreseen the probability that overloading could occur unless strict precautions were taken by him to prevent violations. His failure to do so is an act of criminal negligence in accordance with the statute holding the owner responsible.

The word 'allow' in the statute is modified by or subject to the words 'to be operated.' The defendant would have the court give a narrow and technical construction to one word taken out of context in the statute. 'The rule of strict construction does not require that the narrowest technical meaning be given to the words employed in a criminal statute, in disregard of their context, and in frustration of the obvious legislative intent.' United States v. Corbett, 215 U.S. 233, 242, 30 S.Ct. 81, 84, 54 L.Ed. 173, cited with approval in State v. Faro, 118 Conn. 267, 274, 171 A. 660. We cannot exalt technicalities above substance. We conclude the word 'allow' is effective to make the defendant responsible, regardless of any knowledge on his part.

There remains the question whether the statute requires the state to prove criminal intent or guilty knowledge as a necessary element of a crime. "Although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule and a statute may relate to such a subject-matter and may be so framed as to make an act criminal, whether there has been any intention to break the law or otherwise to do wrong or not." State v. Nussenholtz, 76 Conn. 92, 95, 55 A. 589, 590, and cases therein cited. Guilty knowledge or guilty intent need not be an essential element or attribute within the meaning of the word as here employed. The legislature may supply the intent if it desires. 'There are many statutes in the nature of police regulations for the protection of the morals of the community, * * * under which, either because it is impracticable to * * * prove knowledge, or because it is...