VAUGHAN AND SONS INC. v. State

737 S.W.2d 805, 1987 Tex. Crim. App. LEXIS 698

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 1987
• Docket: 339-83
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant, Vaughan and Sons, Inc., a Texas corporation, was convicted by a jury of criminally negligent homicide. V.T.C.A., Penal Code, § 19.07. The information alleged that appellant, acting through two of its agents, caused the death of two individuals in a motor vehicle collision. See V.T. C.A., Penal Code, § 7.22(a)(1). Punishment was assessed by the trial court at a fine of $5,000.00. See V.T.C.A., Penal Code, § 12.-51.

On appeal the appellant contended, inter alia, that the “penal code provisions for prosecution of corporations and other artificial legal entities do not extend to any type of criminal homicide, therefore the trial court erred in failing to grant appellant’s motion to set aside the information.”

The Court of Appeals agreed and reversed the conviction. Vaughan and Sons, Inc. v. State, 649 S.W.2d 677 (Tex.App.—Texarkana 1983). The Court of Appeals wrote in part:

“A superficial reading of the negligent homicide statute construed with the Penal Code definition of ‘person’ [§ 1.07(27)] indicates that a corporation could indeed be found guilty of the crime charged. But the actual question before this court is whether a legislative intent plainly appears which includes corporations within the criminal field of negligent homicide by use of the term ‘person.’ ”

After reviewing other statutes, etc., the Court of Appeals concluded:

“Therefore, without a stronger, clearer indication from the legislature that the policy for holding corporations criminally responsible for homicide has changed, we decline to so hold. We should make haste slowly when it is in the direction of holding either an individual or a corporation criminally liable for a crime, especially one so serious as homicide, when it is committed by someone other than the person charged.”

Thus, the Court of Appeals ruled that even though the statutes so state, the Legislature could not have intended to include corporations within the class of culpable parties because corporations are unable to formulate “intent” in their “artificial and soulless” form. 649 S.W.2d at 678.

We granted the State’s petition for discretionary review to determine the correctness of the holding of the Court of Appeals.¹

At common law a corporation could not commit a crime. See generally 10 W. Fletcher, Cyclopedia of Corporations, § 4942, at 620 (1978); Henn Corporations, § 186 (1961); W. LaFave & A. Scott, Criminal Law, § 33 (1972).² “This position was predicated on the rationale that a corporation had no mind and hence could not entertain the appropriate criminal intent required for all common law crimes. Also, the absence of physical body precluded imprisonment, the primary punishment available at common law. Illegal acts of a corporate agent were not imputed to the corporate entity because they were considered ultra vires and therefore without the authority of the corporation.” Clark, Corporate Homicide: A New Assault on Corporate Decision Making, Notre Dame Lawyer, Vol. 54, pp. 911-912 (June 1979). See also Wharton’s Criminal Law, 14th Ed., Vol. 2, § 111, pp. 80-81.

The rule that a corporation could not be tried for any criminal offense was once widely accepted, not just in Texas, but throughout the nation. Today, however, the general rule is that a corporation may be held liable for criminal acts performed by its agents acting on its behalf. See generally 18B Amer.Jur.2d, Corporations, §§ 2136 and 2137 (1985); 19 C.J.S., Corporations, § 1358, p. 1073.³

Prior to the 1974 Penal Code and the conforming amendments thereto corporate criminal responsibility was recognized only to a very limited extent in Texas. Searcy and Patterson, Practice Commentary, V.T.C.A., Penal Code, § 7.22. Texas was then apparently the only state that did not provide for general criminal liability. See Hamilton, Corporate Criminal Liability in Texas, 47 Texas Law Rev. 60 (1968); Hamilton, Texas Business Organizations, § 239 (1973); Lebowitz, Recent Development in Texas Corporation Law — Part I, 28 Southwestern Law Journal 641, 662, n. 148 (1974). See also Hildebrand, Corporate Liability for Torts and Crime, 13 Texas Law Rev. 253, 275 (1935); Keeton & Searcy, A New Penal Code for Texas, 33 Tex.B.Joumal 980, 985 (1970). “While there were a few statutes that imposed criminal liability in limited situations, mainly for pollution or willful violations of economic regulatory legislation,⁴ even these were virtually negated by the absence of a procedure under which Texas corporations could be prosecuted.” Lebowitz, supra, at p. 662. See also Practice Commentary to V.T.C.A., Penal Code, § 7.22, supra; Thompson v. Stauffer Chemical Co., 348 S.W.2d 274 (Tex.Civ.App.-Waco 1961) writ ref’d n.r.e.

Three earlier criminal cases left considerable doubt whether a corporation could be successfully prosecuted as a possible defendant. Guild v. State, 79 Tex.Cr.R. 603, 187 S.W. 215 (1916); Judge Lynch International Book and Publishing Co. v. State, 208 S.W. 526 (Tex.Cr.App.1919); Overt v. State, 260 S.W. 856, 859 (Tex.Cr.App.1924). Guild discussed the impossibility of punishing a corporation with imprisonment,⁵ Judge Lynch International Book and Publishing Co. discussed the failure of the term “person” as used in the statute under which prosecution was brought to include corporations,⁶ and Overt discussed the same matter as well as the imputing of intent, and the lack of procedure to bring corporations into court.⁷

Thompson v. Stauffer Chemical Co., supra [348 S.W.2d 274 (Tex.Civ.App.-Waco 1961, writ ref d n.r.e.], involved an appeal from a district court judgment holding void a judgment of a Justice of the Peace Court, and enjoining the Justice of the Peace from issuing execution thereon. A corporation was charged by a criminal complaint with permitting fumes and gases detrimental to health to escape its premises in violation of Article 695, V.A.P.C. (1925), which provided that the misdemeanor offense could be punishable by a fine not to exceed $100.00 upon conviction. The Justice of the Peace issued a civil citation and attached a copy of the criminal complaint thereto. It was executed upon the vice president and general manager of the corporation. When the corporation did not appear for trial, the State made out a prima facie case, and the Justice of the Peace entered a judgment of conviction reciting the corporation “appeared in absentia” and assessed a $100.00 fine. The corporation sought relief in district court and obtained a favorable ruling and an injunction. An appeal followed. The Court of Civil Appeals did not rest its judgment upon the ground that a corporation was not included within the pronoun “whoever” in Article 695, supra, but rested its decision on the following basis:

“It is our view that the matters of which appellant complains are matters which the Legislature will have to afford relief for, if any relief be afforded. There is no procedure in the Code of Criminal Procedure whereby a corporation as such, can be prosecuted for misdemean- or in Texas, and we cannot give our approval to the method employed. The Corporation was never arrested; nor entered an appearance; was tried and convicted ‘in absentia;’ and we think that such Justice of Peace Court judgment of conviction was void.” (Emphasis supplied.)

The Texas Supreme Court refused the writ of error, “no reversible error.” Thus there was no practical procedure for bringing a corporation into court for criminal prosecution.

Former Penal Code Article 22 did define “person,” but it was held that the word used therein extended only to a corporation as the “person” or “party” who, or whose property was affected by the crime. Cochrain v. State, 248 S.W. 43 (Tex.Cr.App.1922). Further, most of the Penal Code statutes, in defining offenses, used the term “whoever” or “person” without any indication that corporations were to be included therein.

It is not difficult to see why it could be said that prior to the 1974 Penal Code “a corporation or a partnership could not be indicted or tried under the criminal laws of Texas.” Tex.Jur.3d, Vol. 18, Criminal Law, § 161, p. 232.⁸

In 1968 Professor Robert W. Hamilton’s treatise, Corporate Criminal Liability in Texas, 47 Texas Law Review 60, was published. In it he reviewed the history of corporate criminal liability in Texas, or rather the lack of it and the steps necessary for criminal prosecution of corporations. In his advocacy of corporate criminal liability he offered in his treatise at pp. 77-85 proposed amendments to the Texas Penal Code which were made available to the State Bar Committee on the Revision of the Penal Code on which he served as a reporter. To overcome legal obstacles of the past Professor Hamilton advocated a definition of “person” used in various Penal Code statutes be broadened to embrace a corporation, that there be a corporate liability statute, procedural provisions for bringing or summoning corporations into court for criminal prosecution, and ample statutory authority for the imposition of fines upon conviction rather than the impossible imprisonment. It appears that said State Bar Committee and subsequently the Legislature addressed some of Professor Hamilton’s concerns. See Anderson, Corporate Criminal Liability for Specific Intent Crimes and Offense of Criminal Negligence — The Direction of Texas Law, St. Mary’s Law Journal, Vol. 15, p. 231 (1984).

With that background we turn to the 1974 Penal Code.

V.T.C.A., Penal Code, § 1.07(a), provides: “(a) In this Code:

******

“(17) ‘Individual’ means a human being who has been bom and is alive.

******

“(27) ‘Person’ means an individual, corporation, or association.” (Emphasis supplied.)

And added to § 1.07(a) in 1979 was (9.1) which provides:

“(9.1) ‘Corporation’ includes nonprofit corporation, professional association created pursuant to statute, and joint stock companies.”

V.T.C.A., Penal Code, § 7.22 (Criminal Responsibility of Corporation or Association), provides:

“(a) If conduct constituting an offense is performed by an agent acting in behalf of a corporation or association and within the scope of his office or employment, the corporation or association is criminally responsible for an offense defined:

“(1) in this code where corporations and associations are made subject thereto;

“(2) by law other than this code in which a legislative purpose to impose criminal responsibility on corporations or associations plainly appears; or .

“(3) by law other than this code for which strict liability is imposed, unless a legislative purpose not to impose criminal responsibility on corporations or associations plainly appears.

“(b) A corporation or association is criminally responsible for a felony offense only if its commission was authorized, requested, commanded, performed, or recklessly tolerated by:

“(1) a majority of the governing board acting in behalf of the corporation or association; or

“(2) a high managerial agent acting in behalf of the corporation or association and within the scope of his office or employment.” ⁹

V.T.C.A., Penal Code, § 12.51 (Authorized Punishments for Corporations and Associations), enacted as a part of the 1974 Penal Code, was amended in 1977. Such statute authorized the imposition of fines upon a corporation if convicted of a criminal offense. No imprisonment was provided.¹⁰

And Chapter 17A of the Code of Criminal Procedure was added in 1973¹¹ to provide the procedural rules for bringing corporations into court with regard to its criminal responsibility. Article 17A.01, V.A.C.C.P., provides in part:

“(a) This Chapter sets out some of the procedural rules applicable to the criminal responsibility of corporations and associations. Where not in conflict with this chapter, the other chapters of this code apply to corporations and associations.

“(b) In this code [Code of Criminal Procedure], unless the context requires a different definition

“(1) * * *

“(4) ‘Person,’ ‘he’ and ‘him’ include corporation and association.” (Emphasis supplied.)

Title 5 of the Texas Penal Code (Offenses Against Persons) includes Chapter 19 (Criminal Homicide).

V.T.C.A., Penal Code, § 19.01 (Types of Criminal Homicide), provides:

“(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

“(b) Criminal homicide is murder, capital murder, voluntary manslaughter, involuntary manslaughter, or criminally negligent homicide.” (Emphasis supplied.)

V.T.C.A., Penal Code, § 19.07 (Criminal Negligence Homicide), provides:

“(a) A person commits an offense if he causes the death of an individual by criminal negligence.

“(b) An offense under this section is a Class A misdemeanor.”¹² (Emphasis supplied.)

V.T.C.A., Government Code, § 311.005 (Code Construction Act — General Definitions), provides in part:

“The following definitions apply unless the statute or content in which the word or phrase is used requires a different definition.

«(1) * * *

“(2) ‘Person’ includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association and any other legal entity....” (Emphasis supplied.)

V.T.C.A., Government Code, § 811.-011(b), provides:

“(b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise shall be construed accordingly.” (Emphasis supplied.)

V.T.C.A., Penal Code, § 1.05 (Construction of Code), provides:

“(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.13

“(b) Unless a different construction is required by the context, Sections 311.011, 311.012, 311.014, 311.015 and 311.021 through 311.032 of the Code Construction Act (Chapter 311, Government Code) apply to the construction of this code.”¹⁴ (Emphasis supplied.)

The Legislature, recognizing that for years Texas was the only jurisdiction in which corporations bore no general criminal responsibility, and aware of the previous roadblocks in case law to the prosecution of corporations for criminal offenses, enacted statutes to remedy the situation. As earlier noted, the Legislature defined “person” in both the Penal Code [V.T.C.A., Penal Code, § 1.07(a)(27), and the Code of Criminal Procedure (Article 17A.01(b), V.A. C.C.P.) ] so as to expressly embrace corporations. To leave no doubt the Legislature also similarly defined “person” in the Code Construction Act (Government Code, § 311.005). In the accusatory and definitional part of most offenses found in the Penal Code the term “person” (as defined elsewhere) is used without qualification. Observe that this was done in V.T.C.A., Penal Code, § 19.01, defining criminal homicide, and in the statute in question in this case, V.T.C.A., Penal Code, § 19.07 (Criminal Negligent Homicide).¹⁵ And the Legislature was not content to rest upon the definitions of “person” to impose corporate criminal responsibility. It also enacted § 7.22 of the Penal Code as general statute to indicate its intention that corporations were to be rendered criminally responsible for the conduct of its agents acting within the scope of its employment in committing offenses. For fear there would be no procedure for summoning corporations into court Chapter 17A was added to the Code of Criminal Procedure. And to overcome the fact that corporations cannot be placed in jail or imprisoned, the Legislature provided a schedule of fines in V.T. C.A., Penal Code, § 12.51 in lieu of imprisonment where corporations were convicted.

The intention of the Legislature could hardly be made clearer given the history, the reform' intended and the literal meaning of the statutes involved. Taken collectively, the foregoing statutes furnish the basis for overcoming the obstacles which in the past have prevented the criminal prosecution of corporations.

It is the State’s contention that a corporation is a “person” under general definitional statute of the Penal Code, § 1.07(a)(27), see also Art. 17A.01(a)(4), V.A.C.C.P., and Government Code, § 311.-005, and since the crime of criminally negligent homicide can be committed by a “person” (V.T.C.A., Penal Code, § 19.07), it follows that the crime can be committed by a corporation. We agree. People v. Ebasco Services, Inc., 77 Misc.2d 784, 354 N.Y.S.2d 807 (N.Y.1974), is instructive. There the court wrote at p. 811: “Since no definition of ‘person’ as applied to the actual committing of the homicide has been included by the Legislature in the homicide article, the court must look to the broader definition of ‘person’ contained in the overall definitional article of the Penal Law.” Looking to the definitional article (§ 10.0017) the Court found that “person” included “a public or private corporation.” The conviction was upheld. See also Commonwealth v. McIlwain School Bus Lines, Inc., 283 Pa.Super. 1, 423 A.2d 413 (1980); State v. Adjustment Department Credit Bureau, Inc., 94 Idaho 156, 483 P.2d 687 (1971).

In State ex rel. Vance v. Hatten, 600 S.W.2d 828 (Tex.Cr.App.1980), we said:

“Arguments are made by respondent that the legislature did not intend for the statute to be given its literal meaning. However, we must agree with the maxim stated in Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961) that:

“ ‘If Parliament does not mean what it says, it must say so.’

If this Court were to reach the conclusion by speculation that the legislature did not intend what it clearly and unambiguously stated, we would still be without authority to change the specific terms of the statute, where such language is plain and unequivocal.”

The Court of Appeals reasoned that Chapter 19 of the Texas Penal Code (1974) groups all degrees of homicide in one unit; that “Sec. 19.01(a) implies that whoever is capable of committing criminal homicide must also be capable of intent, knowledge, and recklessness ... not just criminal negligence” that it is “readily apparent that a corporation is unfit to intentionally or knowingly cause the death of an individual — ” The Court thus, would not, without a stronger, clearer indication from the Legislature, hold that corporations were criminally responsible for homicide. We do not agree.

It is obvious that the Court of Appeals’ language in its opinion that “[W]e should make haste slowly_” came from the language in Commonwealth v. Punxsutawney, 24 Pa.C.C. 25, 48 Pits.Leg.J. 42 (1900)¹⁶ (refusing to hold a street railway company criminally liable for the crime of assault in ejecting a passenger). And the conclusion of our Court of Appeals that there was insufficient evidence of the legislative intent to impose corporate criminal liability under § 19.07 of the Texas Penal Code was apparently influenced by the same holding in People v. Rochester Railway & Light Co., 195 N.Y. 102, 107, 88 N.E. 22, 24 (1909). Since the turn of the century when these cases were decided much water has passed under the bridge, and many new bridges have been built. In fact the whole surrounding landscape has changed. Punxsutawney no longer has any precedential value, see Commonwealth v. McIlwain, supra, and even Rochester Railway itself indicated that legislative action could change the result there reached.¹⁷

The Court of Appeals stated that those jurisdictions which have addressed the issue of corporate criminal liability . are divided as to criminal responsibility for personal crimes such as homicide or rape, though the majority still agrees that a corporation cannot commit a crime requiring specific intent.” No authority is cited.

In 18B Amer.Jur.2d, § 2137, pp. 959-960, it is stated:

“It is now generally accepted that a corporation may be indicted for a crime to which a specific intent is essential, and that the intent is essential, and that the intent of its employees or agents may be imputed to the corporations.” (Emphasis supplied.)

Numerous cases are cited. See also Corporation’s Criminal Liability for Homicide, 45 A.L.R. 4th, § 4(a), 1021, 1030.

In 19 C.J.S., Corporations, § 1363, pp. 1075-1076, it was pointed out that:

“A corporation may be criminally liable for crimes which involve a specific element of intent as well for those which do not, and, although some crimes require such a personal, malicious intent that a corporation is considered incapable of committing them, nevertheless under the proper circumstances the criminal intent of its agent may be imputed to it so as to render it liable, the requisites of such imputation being essentially the same as those required to impute malice to corporations in civil actions.”

See also and cf. Corporation’s Criminal Liability for Homicide, 45 A.L.R., 4th, 1021.

After recognizing that some courts have held that a corporation cannot be guilty of homicide in absence of a specific statutory provision, it is stated in 19 C.J.S., Corporations, § 1364, p. 1077:

“However it has been said that a definition of certain forms of manslaughter may be formulated which would be applicable to a corporation and make it liable for various acts of misfeasance and non-feasance when resulting in homicide. Thus, a corporation has been held subject to prosecution for involuntary manslaughter where there was nothing in the definition of the crime or the punishment provided which would make it impossible to hold a corporation liable.” See State v. Lehigh Valley R. Co., 103 A. 685, 90 N.J.Law 372 (1917), and Granite Construction Co. v. Superior Court of Fresno County, 197 Cal.Rptr. 3, 149 C.A.3d 465 (Court of Appeals, 5th Dist. 1983).

An examination of decisional law from other states indicates that where there are corporate criminal responsibility statutes similar to our own Texas statutes, it appears to have been consistently held that a corporation is liable for specific intent crimes and offenses of criminal negligence.

In Commonwealth of Kentucky v. Fortner LP Gas Co., Inc., 610 S.W.2d 941 (Kentucky Court of Appeals, 1980) (Discr. Review Denied), the indictment involved manslaughter in the second degree. A corporate truck with defective brakes had struck two children, killing one, while they were crossing the highway after alighting from a school bus. The circuit court sustained the motion to dismiss the indictment relying upon Commonwealth v. Illinois Central Railway Co., 152 Ky. 320, 153 S.W. 459 (1913). The Illinois Central case had been a definitive case on corporate responsibility for criminal conduct for many years. Basically, the holding of that case was that “corporations cannot be indicted for offenses which derive their criminality from evil intention or which consist in a violation of those social duties which appertain to man and subjects.” The holding was predicated on two things. One, was that in 1913 there was no separate punishment for corporations provided by Kentucky statute, and two, the court was not willing, in a criminal prosecution, to extend the definition of the word “person” in § 475 of the Kentucky statutes to include corporations. On appeal of the ruling dismissing the indictment the Kentucky Court of Appeals decided that Illinois Central must be considered in light of its date, statutory changes and its total holding. The Kentucky Court of Appeals observed that there was now a statute imposing criminal liability upon a corporation, second there was a general statutory definition of “person” which included corporations, and a punishment statute which imposed fines upon a corporation for violation of offenses. The court concluded that these statutes were envisioned in Illinois Central which might support an indictment. The order to dismiss the indictment was reversed. Our Texas statutes are almost identical to the Kentucky statutes.

In State v. Adjustment Department Credit Bureau, Inc., 94 Idaho 156, 483 P.2d 687 (1971), the corporation was convicted of the offense of extortion, a special intent crime. On appeal it contended that it was not a “person” within the meaning of the criminal statutes and could not be found guilty of a crime unless specifically provided for in the statute involved. The Idaho Supreme Court noted that another state statute defined terms used in the various statutes including the term “person” which embraced a corporation as well as a natural person. The Court found the definitional statute to be controlling and that corporate criminal liability for the offense of extortion could be imposed. As a a result of an error in the jury charge, however, the cause was reversed and remanded.

In Granite Construction Co. v. Superior Court of Fresno County, 149 Cal.App.3d 465, 197 Cal.Rptr. 3, 45 A.L.R., 4th, 1011 (Court of Appeal, Fifth Dist.1983), the Court denied the corporation’s petition for peremptory writ of mandate challenging its indictment for manslaughter following the accidental death of seven workers at a power plant under construction by the corporation. The California Appellate Court held that corporations may be prosecuted for manslaughter since provisions of the state’s penal code defined “person” to include a corporation as well as a natural person, that the manslaughter provision of the penal code did not limit its scope to act by natural persons, and the code provided appropriate punishment for corporate crimes. The corporation argued that the Legislature had not intended to make corporations responsible for crimes when the penal code was enacted. In rejecting this contention the Court observed that traditional notions of fair play and substantial justice are not offended by applying the clear meaning of statutory terms, for when a statute’s language is clear, its plain meaning should be followed.

Commonwealth v. McIlwain School Bus Lines, Inc., 423 A.2d 413 (Pa.Super.Ct.1980), held that a private corporation may be held criminally liable for homicide by vehicle. In resolving the statutory construction problem presented the Court held that the Pennsylvania statute defining “person” included a corporation, that there was a general corporation liability statute, and while the homicide by vehicle statute did not itself specifically include a corporation it did use the term “any person,” and that such was sufficient to subject the corporation to criminal liability for homicide by vehicle. See also People v. Ebasco Services, Inc., supra.

There are a number of additional cases from other states which discuss statutes that are similar to Texas statutes and which assign corporate criminal liability for specific intent crimes and offenses of criminal negligence. See, e.g., Commonwealth v. Beneficial Finance Co., 275 N.E.2d 33 (1971); People v. Lee Myles Corp., 53 A.D.2d 873, 385 N.Y.S.2d 339 (1976); State v. Oregon City Elks Lodge No. 1189, BPO Elks, 17 Or.App. 124, 520 P.2d 900 (1974); Commonwealth v. J.P. Mascaro & Sons, 266 Pa.Super. 8, 402 A.2d 1050 (1979). See also Anderson, Corporate Criminal Liability for Specific Intent Crimes and Offenses of Criminal Negligence—The Direction of Texas Law. 15 St. Mary’s Law Journal 231 (1984). See also United States v. Van Schaick, 134 F. 592 (C.C.N.Y.1904); People v. Warner-Lambert Co., 51 N.Y.2d 295, 434 N.Y.S.2d 159, 414 N.E.2d 660 (1980), cert. den. 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227.

And in Granite Construction Co. v. Superior Court, supra, which held that a corporation may be prosecuted for manslaughter, the Court found that corporations can form intent, be reckless, and commit acts through its agent. The Court noted that California had well established methods to impute criminal responsibility to corporations, so that a codification of rules for imputing intent, criminal negligence, or recklessness was unnecessary. The Court reasoned that if corporations are liable for crimes of specific intent, they should be equally liable for crimes of criminal negligence or recklessness.

In Brickley, Corporate Criminal Liability, Vol. I (Evolution of Liability), § 209, p. 31, it was written:

“As courts gave express recognition to the capacity of corporations to commit crimes requiring general intent, open hostility to retention of a ‘fanciful theory in process of abandonment’ surfaced and brought to the forefront consideration of the question whether there remained a sound reason for drawing a distinction between imputing general and specific intent to corporations. After all, corporations have been held vicariously liable for intentional torts including assault and battery, libel and malicious prosecution. Because it would be no more difficult theoretically to impute specific intent for a crime than a tort, the only point remaining in dispute was the question whether the corporation lacked capacity to form evil intention. The sug-gestión that it did was met with little patience. ‘The same law that creates the corporation may create the crime, and to assert that the Legislature cannot punish its own creature because it cannot make a creature capable of violating the law does not ... bear discussion.’ The proposition simply was untenable.

“Beginning in the late nineteenth and continuing into the early twentieth century, courts wrestling with this issue began breaking down the last barrier to imposing on corporations the full range of liabilities to which natural persons were subject. During this period corporations were found to be properly subject to criminal prosecution for such divers offenses as ... even manslaughter.”¹⁸ (Footnotes omitted.)

See also Brickley, Corporate Criminal Accountability: A Brief History and an Observation, 60 Washington University Law Quarterly, pp. 393-423.

Given the history of corporate criminal liability in Texas prior to the 1974 Penal Code, the various provisions of the 1974 Penal Code and other statutes enacted to bring about a change, the clear statutory language, and the analogous case authority, we reject the reasoning of the Court of Appeals and conclude that a corporation may be criminally prosecuted for the misdemeanor code offense of criminally negligent homicide under V.T.C.A., Penal Code, § 19.07, for corporations have been made subject thereto. See V.T.C.A., Penal Code, § 7.22(a)(1).¹⁹

The Court of Appeals judgment is reversed and the cause remanded to that court for consideration of appellant’s points of error.

1 . It was the State’s grounds of review that the holding of the Court of Appeals that the Legislature did not intend for V.T.C.A., Penal Code, § 19.07, to be applied to corporations, misconstrued the statute, was in conflict with cases from this Court relating to statutory construction, and was a holding of such importance to state law it should be reviewed and settled by this Court.

2 . Lord Holt, C.J., stated: "A corporation is not indictable, but the particular members of it are.” Anonymous, 88 Eng.Reg. 1518 (KB 1701). See also 1 W. Blackstone, Commentaries* 476: “A corporation cannot commit treason, or felony, or other crime, in its corporate capacity: though its members may, in their distinct individual capacities.” For early American cases see Androscoggin Water Power Co. & Bethel Steam Mill Co., 64 Me. 441 (1875); State v. Great Works Milling & Mfg. Co., 20 Me. 41 (1841).

3 . In 1 Wharton’s Criminal Law, 14th Ed., Vol. 2, § 111, pp. 80-81, it is written:

"At early common law, a corporation being an artificial person and an inanimate legal entity, was deemed incapable of committing a crime, it could not entertain a culpable mental state and it could not be physically punished.

"This incapacity no longer exists. A corporation is now capable of committing a crime and is capable of being punished therefor. The circumstances under which it is liable are commonly described by statute.” (Emphasis supplied.)

4 . See, e.g., Article 4477-5b, §§ 1(2), 4 (Supp. 1974) (air pollution), Texas Water Code Ann., §§ 21.551-.553 (1972) (water pollution); Article 6008, §§ 2, 23, V.A.C.S. (1962) (regulation of natural gas production) and other statutes listed in note 149 of Lebowitz, supra at p. 662.

5 . In Guild, the defendant, an agent of a corporation, was charged and convicted of violation of the "pure feedstuff law." His conviction was affirmed. In response to the contention that the statute was invadid because it made the agent guilty as well as the principad, the Court wrote:

'It is the general principle of law in this state that the person who actually commits a crime shall be punished therefor, whether he be acting on his own initiative or is an agent for a principal ... It is with rare exceptions our law provides for the punishment of a corporation for the violation of a criminal statute.... The statute prescribes as a punishment for its violation a fine, or imprisonment in the county jail, or both. If a corporation was insolvent, there would be no way whatever of enforcing a conviction of it. It could not be imprisoned either as apart of the punishment or for failure to pay the money fine. Hence, in order to enforce the law, it is essentiad that the agent who commits the crime shall be punished therefor instead of his principal, a corporation."

6 . In Judge Lynch International Book and Publishing Co., supra, the corporation or firm was convicted of the crime of engaging in the business of an emigrant agent without having first obtained a license from the Commissioner of Labor Statistics. The punishment assessed wats 30 days in county jail and a fine of $100.00. On appeal the Attorney Generad confessed error on the ground that "there is no provision of the law in this state under which a firm or corporation can be indicted or tried under the criminal laws." The Court reversed and stated that the statute referred only to "persons” which did not include corporations and that the proper "person” to charge was the individual committing the criminal act proscribed by the statute.

7 .In Overt, supra, the defendant, an agent of a corporation, was charged under the Net Container Act of the 38th Legislature. In dictum the Court wrote:

"Section 7 of the Act is also quoted above. It penalizes ‘any person.’ Section 9 is also set out. It says that within the term ‘person’ is included any firm, company, copartnership, corporation, association, or organization, joint-stock companies and receivers and distributing agents, and all officers, directors, and managers of such concerns. We cannot imagine a more comprehensive list of those sought to be held punishable. Practically all the persons named should be held guiltless under our laws unless knowledge or willfulness could be imputed to them. We bring criminals personally before the courts and juries under our procedure and enforce punishment fixed by confinement in the jails or penitentiaries. Corporations, companies, firms, copartnerships, joint-stock companies, or associations could not as such be prosecuted as criminals and could not be brought in person before the courts; and a law that undertakes to so hold them, must be held unreasonable, indefinite, and of doubtful construction. ..."

8 . "However in rare instances provision was made for the punishment of corporations for the violations of criminal statutes by means of penalties to be recovered by suit, in contradiction to a fine or imprisonment therefor.” Tex.Jur.3d, Vol. 18, Criminal Law, § 262, p. 233.

9 . Subsection (b) was amended by Acts 1975, 64th Leg., p. 913, ch. 342, § 4, eff. Sept. 1, 1975.

10 . Said § 12.51 provides:

"(a) If a corporation or association is adjudged guilty of an offense that provides a penalty consisting of a fine only, a court may sentence the corporation or association to pay a fine in an amount fixed by the court, not to exceed the fine provided by the offense.

"(b) If a corporation or association is adjudged guilty of an offense that provides a penalty including imprisonment, or that provides no specific penalty, a court may sentence the corporation or association to pay a fine in an amount fixed by the court, no to exceed:

"(1) $20,000 if the offense is a felony of any category;

"(2) $10,000 if the offense is a Class A or Class B misdemeanor; or

"(3) $2,000 if the offense is a Class C misdemeanor.

"(c) In lieu of the fines authorized by Subsections (a) and (b)(1) and (b)(2) of this section, if a court finds that the corporation or association gained money or property or caused personal injury, property damage, or other loss through the commission of a felony or Class A or Class B misdemeanor, the court may sentence the corporation or association to pay a fine in an amount fixed by the court, not to exceed double the amount gained or caused by the corporation to be lost, whichever is greater.

"(d) In addition to any sentence that may be imposed by this section, a corporation that has been adjudged guilty of an offense may be ordered by the court to give notice of the conviction to any person the court deems appropriate.” (Emphasis supplied.)

Amended by Acts 1977, 65th Leg., p. 1917, ch. 768, § 1, eff. June 16, 1977.

"1977 Amendment. Raised fines in subds. (b)(1) to (3) from $10,000 to $20,000, from $2,000 to $10,000, and from $200 to $2,000, respectively; in subsec. (c), inserted 'or caused personal injury, property damage, or other 'loss’ and added ‘or caused by corporation to be lost, whichever is greater’; and added subsec. (d).”

11 .Acts 1973, 63rd Leg., p. 979, ch. 399, § 2(D), eff. Jan. 1, 1974.

12 . V.T.C.A., Penal Code, § 12.31, provides that one guilty of a Class A misdemeanor shall be punished by

"(1) a fine not to exceed $2,000;

“(2) confinement in jail for a term not to exceed one year; or

"(3) both such fine and imprisonment." where a corporation is convicted of a Class A misdemeanor. See V.T.C.A., Penal Code, § 12.-51(b)(2).

13 . Formerly the common law rule that penal statutes were to be construed strictly was often applied.

14 . The aforegoing Subsection (b) of said § 1.05 was amended in 1985 (Acts 1985, 69th Leg., ch. 479, § 69, eff. Sept. 1, 1985). The original subsection (b) read ‘Unless a different context is required by the context, Sections 2.01, 2.02, 2.04, 2.05 and 3.01 through 3.12 of the Code Construction (Article 5429b-2, Vernon's Texas Civil Statutes) apply to the construction of this code.” This subsection was in effect at the time of the alleged offense, the instant trial and original appeal.

15 .It is observed that the Practice Commentary to V.T.C.A., Penal Code, § 7.22, provides in part:

“For what kinds of offenses may legal entities be held criminally responsible? Better drafting would have made this question easier to answer, but comparison between the 1970 draff and this section as enacted yields an answer in two parts. First, the definition of the offense, whether in this code or elsewhere, must evidence a legislative purpose to cover corporations and associations. This intent is easiest to recognize in code offenses, as provided in Subsection (a)(1), because most of them use the term ‘person,’ which is defined in section 1.07 to include corporation and association, to identify who may commit the offense. For example, theft and fraud as defined in this code cover legal entities but bigamy and incest do not because the latter use the term ‘individual’ in identifying the actor.”

16 . Quoted in Commonwealth v. McIlwain School Bus Lines, Inc., 283 Pa.Super. 1, 423 A.2d 413 (1980) at p. 418.

17 . In Section IV of Anderson, Corporate Criminal Liability for Specific Intent Crimes and Offenses of Criminal Negligence — The Direction of Texas Law, 15 St. Mary’s Law Journal, 231, 246-249 (1984), the author explains extremely well how the decision of the Court of Appeals in the instant case is inconsistent with other jurisdictions, and how some of the authorities relied upon by that court are out of date, "unpersuasive, as well as off point.” Such discussion need not be repeated here but is clearly applicable.

18 . Citing United States v. Van Schaick, 134 F.2d 592 (C.C.N.Y.1904); State v. Lehigh Valley R.R., 90 N.J.L. 372, 103 A. 685 (1917).

19 . We are well aware of the arguments against the imposition of corporate criminal responsibility. Professor Hamilton, in favor of such responsibility, stated in his treatise, Corporate Criminal Liability in Texas, 47 Tex.Law Rev. 60, 68 (1968), "Further, Texas and other jurisdictions not recognizing criminal liability have managed to struggle along for many years without any evident deficiency in law enforcement.” In Lebowitz, Recent Developments in Texas Corporation Law — Part I, 28 Southwestern Law Journal 641 (1974), the author, in discussing V.T.C.A., Penal Code, § 7.22(b), at p. 664, stated, "On the other hand, responsibility for a felony offense is limited to cases where its commission was either initiated, performed or recklessly tolerated by a majority of the board acting in their capacity as such or by a high managerial agent acting for the corporation and in the scope of his office or employment. Given these limits, there are not likely to be many felony prosecutions." (Emphasis supplied.) In Coleman, Is Corporate Criminal Liability Really Necessary?, 29 Southwestern Law Journal 908 (1975-76), the author of the comment discusses the deterrent effect of corporate criminal liability questioning whether the fines imposed will result in any more than a ‘license fee” to engage in illegal acts, or whether the fines will punish innocent shareholders or whether the fines will be passed on to consumers. It was observed that juries are quicker to convict corporations than individuals, etc. One commentator has urged, inter alia, that an economic — legal inquiry into the supposed effectiveness of corporate criminal liability be undertaken and the mens rea requirements of the common law be rigidly adhered to. Mueller, Mens Rea and the Corporation, 19 V.Pitt.Law Rev. 21 (1957). See also and cf. Corporate Criminal Liability for Acts in Violation of Company Policy, 50 Georgetown Law Journal 547 (1962).

The wisdom of legislation is for the Legislature and not for the courts in construing statutes. See generally 53 Tex.Jur.2d, Statutes, § 124, p. 176; Vance v. Hatten, 600 S.W.2d 828, 830 (Tex.Cr.App.1980).