W. T. Grant Co. v. Superior Court

California Court of Appeal

W. T. Grant Co. v. Superior Court

23 Cal. App. 3d 284, 100 Cal. Rptr. 179, 1972 Cal. App. LEXIS 1212

CourtCalifornia Court of Appeal

DecidedFebruary 4, 1972

DocketCiv. 39333

StatusPublished

Cited by10 cases

This text of 23 Cal. App. 3d 284 (W. T. Grant Co. v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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W. T. Grant Co. v. Superior Court, 23 Cal. App. 3d 284, 100 Cal. Rptr. 179, 1972 Cal. App. LEXIS 1212 (Cal. Ct. App. 1972).

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Opinion

FLEMING, J.

W. T. Grant, a corporation, having been charged with five counts of grand theft (Pen. Code, § 487), seeks to prohibit further prosecution of the charges against it on the ground the information lacked probable cause (Pen. Code, § 999a).

[286]*286Evidence at the preliminary hearing disclosed that during a three-year period codefendant Michael Cándelos, manager of the television department in a Grant store at Santa Barbara, sold used television sets as new sets to Grant’s customers. William F. Berry, a television repairman who serviced television sets for Grant, testified he discussed these sales with Cándelos and with Hill, the Grant manager: “Mr. Hill and I, we had a— somewhat of a slight argument—about sets, and I asked him at that time how he could repo sets and sell them as new sets again, and he said, told me at the time it was company policy and that was none of my business.”

Grant contends the testimony of Berry was hearsay and therefore not competent evidence, and the evidence at the preliminary hearing was insufficient to establish the criminal intent of Grant, a nationwide corporation operating hundreds of stores.

We are not persuaded by Grant’s arguments. First, since no objection to Berry’s testimony on the ground of hearsay was made at the preliminary hearing, his testimony was properly considered by the court in determining probable cause against Grant. If material and relevant evidence is received by a tribunal without objection, such evidence may be relied upon to support a finding, even though its admission might have been blocked by the invocation of an exclusionary rule. (Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal.App.2d 675, 700 [39 Cal.Rptr. 64].)

Second, Berry’s testimony reporting Hill’s statement qualified as an exception to the hearsay rule in that it set forth what amounted to an admission by an agent made while acting within the scope of his employment. (Evid. Code, § 1222.) Hill had told Berry and Cándelos that the resale of used television sets as new sets was “company policy.” As store manager Hill was an agent for Grant (see, e.g., Hazard, Gould, & Co. v. Rosenberg, 177 Cal. 295, 298-299 [170 P. 612]), and presumptively he was acting on Grant’s behalf and furthering the conduct of its business at the time he made this- statement to his subordinates. As store manager Hill is deemed to possess the usual and customary authority of a retail store manager, which normally includes authority to fix the terms, conditions, and representations on which company merchandise is sold, and authority to instruct subordinates how to carry out their duties and responsibilities. As Grant’s principal executive on the scene he functioned as the company’s directing arm and spoke with the voice of its authority. Strangers to Grant’s internal operation and organization are entitled to assume that Hill possessed authority to instruct on company sales policy at that particular store. (Evid. Code, § 1222; cf. Johnson V. Bimini Hot Springs, 56 [287]*287Cal.App.2d 892, 902 [133 P.2d 650]; People v. Canadian Fur Trappers Corp. (1928) 248 N.Y. 159 [161 N.E. 455, 458, 59 A.L.R. 372]; Continental Baking Co. v. United States (6th Cir. 1960) 281 F.2d 137, 149-151; Egan v. United States (8th Cir. 1943) 137 F.2d 369, 379.) At the trial Grant may produce evidence to rebut the inference of its participation in the charged thefts, and it may demonstrate Hill’s lack of authority to establish or interpret company policy along the lines indicated by his admission. But meanwhile Hill’s statement suffices to establish for purposes of the preliminary hearing Grant’s participation in the thefts. (Magnolia Motor & Logging Co. v. United States (9th Cir. 1959) 264 F.2d 950, 953-954.)

Substantively, the evidence furnishes probable cause for the charges of grand theft against Grant, and we think it no longer open to serious doubt that a corporation may commit a crime which requires specific intent. (New York Central R.R. v. United States (1909) 212 U.S. 481, 494-495 [53 L.Ed. 613, 621-622, 29 S.Ct. 304]; People v. Hudson Valley Const. Co., 217 N.Y. 172 [111 N.E. 472, 474-475]; State v. Municipal Auto Sales, Inc. (Fla. 1969) 222 So.2d 278.) The size of the corporation and the multiplicity of its operations provide no automatic defense to the charges. (United States v. Armour & Co. (3d Cir. 1948) 168 F.2d 342, 343-344.)

The alternative writ of prohibition is discharged, and a peremptory writ of prohibition is denied.

Compton, J., concurred.

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Opinion

FLEMING, J.

W. T. Grant, a corporation, having been charged with five counts of grand theft (Pen. Code, § 487), seeks to prohibit further prosecution of the charges against it on the ground the information lacked probable cause (Pen. Code, § 999a).

[286]*286Evidence at the preliminary hearing disclosed that during a three-year period codefendant Michael Cándelos, manager of the television department in a Grant store at Santa Barbara, sold used television sets as new sets to Grant’s customers. William F. Berry, a television repairman who serviced television sets for Grant, testified he discussed these sales with Cándelos and with Hill, the Grant manager: “Mr. Hill and I, we had a— somewhat of a slight argument—about sets, and I asked him at that time how he could repo sets and sell them as new sets again, and he said, told me at the time it was company policy and that was none of my business.”

Grant contends the testimony of Berry was hearsay and therefore not competent evidence, and the evidence at the preliminary hearing was insufficient to establish the criminal intent of Grant, a nationwide corporation operating hundreds of stores.

We are not persuaded by Grant’s arguments. First, since no objection to Berry’s testimony on the ground of hearsay was made at the preliminary hearing, his testimony was properly considered by the court in determining probable cause against Grant. If material and relevant evidence is received by a tribunal without objection, such evidence may be relied upon to support a finding, even though its admission might have been blocked by the invocation of an exclusionary rule. (Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal.App.2d 675, 700 [39 Cal.Rptr. 64].)

Second, Berry’s testimony reporting Hill’s statement qualified as an exception to the hearsay rule in that it set forth what amounted to an admission by an agent made while acting within the scope of his employment. (Evid. Code, § 1222.) Hill had told Berry and Cándelos that the resale of used television sets as new sets was “company policy.” As store manager Hill was an agent for Grant (see, e.g., Hazard, Gould, & Co. v. Rosenberg, 177 Cal. 295, 298-299 [170 P. 612]), and presumptively he was acting on Grant’s behalf and furthering the conduct of its business at the time he made this- statement to his subordinates. As store manager Hill is deemed to possess the usual and customary authority of a retail store manager, which normally includes authority to fix the terms, conditions, and representations on which company merchandise is sold, and authority to instruct subordinates how to carry out their duties and responsibilities. As Grant’s principal executive on the scene he functioned as the company’s directing arm and spoke with the voice of its authority. Strangers to Grant’s internal operation and organization are entitled to assume that Hill possessed authority to instruct on company sales policy at that particular store. (Evid. Code, § 1222; cf. Johnson V. Bimini Hot Springs, 56 [287]*287Cal.App.2d 892, 902 [133 P.2d 650]; People v. Canadian Fur Trappers Corp. (1928) 248 N.Y. 159 [161 N.E. 455, 458, 59 A.L.R. 372]; Continental Baking Co. v. United States (6th Cir. 1960) 281 F.2d 137, 149-151; Egan v. United States (8th Cir. 1943) 137 F.2d 369, 379.) At the trial Grant may produce evidence to rebut the inference of its participation in the charged thefts, and it may demonstrate Hill’s lack of authority to establish or interpret company policy along the lines indicated by his admission. But meanwhile Hill’s statement suffices to establish for purposes of the preliminary hearing Grant’s participation in the thefts. (Magnolia Motor & Logging Co. v. United States (9th Cir. 1959) 264 F.2d 950, 953-954.)

Substantively, the evidence furnishes probable cause for the charges of grand theft against Grant, and we think it no longer open to serious doubt that a corporation may commit a crime which requires specific intent. (New York Central R.R. v. United States (1909) 212 U.S. 481, 494-495 [53 L.Ed. 613, 621-622, 29 S.Ct. 304]; People v. Hudson Valley Const. Co., 217 N.Y. 172 [111 N.E. 472, 474-475]; State v. Municipal Auto Sales, Inc. (Fla. 1969) 222 So.2d 278.) The size of the corporation and the multiplicity of its operations provide no automatic defense to the charges. (United States v. Armour & Co. (3d Cir. 1948) 168 F.2d 342, 343-344.)

The alternative writ of prohibition is discharged, and a peremptory writ of prohibition is denied.

Compton, J., concurred.

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