COMMONWEALTH of Pennsylvania
This is an appeal from the judgment of the Court of Quarter Sessions of Lackawanna County sentencing the defendant to three months in the Lackawanna County Jail, a fine of five hundred dollars and the costs of prosecution, in a case involving violations of the Pennsylvania Liquor Code.
John Koczwara, the defendant, is the licensee and operator of an establishment on Jackson Street in the City of Scranton known as J. K.'s Tavern. At that place he had a restaurant liquor license issued by the [p. 578] Pennsylvania Liquor Control Board. The Lackawanna County Grand Jury indicted the defendant on [various] counts for violations of the Liquor Code. The first and second counts averred that the defendant permitted minors, unaccompanied by parents, guardians or other supervisors, to frequent the tavern on February 1st and 8th, 1958; the third count charged the defendant with selling beer to minors on February 8th, 1958; the fourth charged the defendant with permitting beer to be sold to minors on February 8th, 1958, ….
* * *
At the conclusion of the Commonwealth's evidence, count three of the indictment, charging the sale by the defendant personally to the minors, was removed from the jury's consideration by the trial judge on the ground that there was no evidence that the defendant had personally participated in the sale or was present in the tavern when sales to the minors took place. …. [T]he jury returned a verdict of guilty as to each of the remaining three counts: two counts of permitting minors to frequent the licensed premises without parental or other supervision, and the count of permitting sales to minors.
… Judge [p. 579] Hoban … sentenced the defendant to pay the costs of prosecution, a fine of five hundred dollars and to undergo imprisonment in the Lackawanna County Jail for three months.
The defendant took an appeal to the Superior Court, which, in an opinion by Judge Hirt, affirmed the judgment and sentence of the lower court. A petition for an allowance of an appeal was filed by the defendant. Because of the importance of the issues raised, the petition was allowed and an appeal granted.
Defendant raises two contentions, both of which, in effect, question whether the undisputed facts of this case support the judgment and sentence imposed by the Quarter Sessions Court. Judge Hoban found as fact that 'in every instance the purchase [by minors] was made from a bartender, not identified by name, and service to the boys was made by the bartender. There was no evidence that the defendant was present on any one of the occasions testified to by these witnesses, nor that he had any personal knowledge of the sales to them or to other persons on the premises.' We, therefore, must determine the criminal responsibility of a licensee of the Liquor Control Board for acts committed by his employees upon his premises, without his personal knowledge, participation, or presence, which acts violate a valid regulatory statute passed under the Commonwealth's police power.
While an employer in almost all cases is not criminally responsible
for the unlawful acts of his employees, unless he consents to, approves,
or participates in such acts, courts all over the nation have struggled
for years in applying this rule within the framework of 'controlling the
sale of intoxicating liquor.' See Annotation, 139 A.L.R. 306 (1942).
At common law, any attempt to invoke the doctrine of respondeat superior
in a criminal case would have run afoul of our deeply ingrained notions
of criminal jurisprudence that guilt [p. 580] must be personal and individual.
[n. 1] In recent decades, however, many states have enacted detailed
regulatory provisions in fields which are essentially noncriminal, e.g.,
pure food and drug acts, speeding ordinances, building regulations, and
child labor, minimum wage and maximum hour legislation. Such statutes
are generally enforceable by light penalties, and although violations are
labelled crimes, the considerations applicable to them are totally different
from those applicable to true crimes, which involve moral delinquency and
which are punishable by imprisonment or another serious penalty.
Such so-called statutory crimes are in reality an attempt to utilize the
machinery of criminal administration as an enforcing arm for social regulations
of a purely civil nature, with the punishment totally unrelated to
questions of moral wrongdoing or guilt. It is here that the social
interest in the general well-being and security of the populace has been
held to outweigh the individual interest of the particular defendant.
The penalty is imposed despite the defendant's lack of a criminal intent
or mens rea.
In the instant case, the defendant has sought to surround himself with all the safeguards provided to those within the pale of criminal sanctions. He has argued that a statute imposing criminal responsibility should be construed strictly, with all doubts resolved in his favor. While the defendant's position is entirely correct, we must remember that we are dealing with a statutory crime within the state's plenary police power. In the field of liquor regulation, the legislature has enacted a comprehensive Code aimed at regulating [p. 582] and controlling the use and sale of alcoholic beverages. The question here raised is whether the legislature intended to impose vicarious criminal liability on the licensee-principal for acts committed on his premises without his presence, participation or knowledge.
This Court has stated, as long ago as Commonwealth v. Weiss,
1891, 139 Pa. 247, 251, 21 A. 10, 11 L.R.A. 530, that 'whether a criminal
intent, or a guilty knowledge, is a necessary ingredient of a statutory
offense * * * is a matter of construction. It is for the legislature
to determine whether the public injury, threatened in any particular matter,
is such, and so great as to justify an absolute and indiscriminate prohibition.'
In the Weiss case, and in Commonwealth v. Miller, 1890, 131 Pa. 118, 18
A. 938, 6 L.R.A. 633, this Court construed the statute in question in the
light of its letter and spirit and its manifest purpose. See also
Commonwealth v. Jackson, 146 Pa.Super. 328, 22 A.2d 299, affirmed per curiam
by this Court in 1942, 345 Pa. 456, 28 A.2d 894. [n. 3]
6. For an extremely interesting and incisive analysis of the mens rea requirement in criminal offenses, see Mueller, On Common Law Mens Rea, 42 Minn.L.Rev. 1043 (1958). While we sympathize fully with the author's eloquent plea for a return to the moral implications of criminal guilt, we await further determinations by the Supreme Court of the United States as to whether the rationale of Lambert v. People of State of California, 1957, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, will be extended to all statutory offenses which have been interpreted as not requiring a criminal mens rea. See also Allen, Book Review, 66 Yale L.J. 1120 (1957); Mueller, Mens Rea And The Law Without It, 58 W.Va.L.Rev. 34 (1955).
This Court is ever mindful of its duty to maintain and establish the proper safeguards in a criminal trial. To sanction the imposition of imprisonment here would make a serious change in the substantive criminal law of the Commonwealth, one for which we find no justification. We have found no case in any jurisdiction which has permitted a prison term for a vicarious offense. The Supreme Court of the United States has had occasion only recently to impose due process limitations upon the actions of a state legislature in making unknowing conduct criminal. Lambert v. People of State of California, 1957, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. Our own courts have stepped in time and again to protect a defendant from being held criminally responsible for acts about which he had no knowledge and over which he had little control. Commonwealth v. Unkrich, 1940, 142 Pa.Super. 591, 16 A.2d 737; Commonwealth v. Schambers, 1932, 105 Pa.Super. 467, 161 A. 624; Commonwealth v. Rovnianek, 1889, 12 Pa.Super. 86. We would be utterly remiss were we not to so act under these facts.
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Judgment, as modified, is affirmed.
MUSMANNO, Justice (dissenting).
The Court in this case is doing what it has absolutely no right to do. It is laying aside its judicial robes and officiating as members of the General Assembly. It is declaring a crime which has no existence in the statute books, it is imposing a penalty which is not authorized by the criminal code.
The defendant John Koczwara owns a restaurant in Scranton where,
because of a liquor license issued to him by the Commonwealth of Pennsylvania,
he is authorized to sell intoxicating liquor. He was indicted in
Lackawanna County for violations of the Liquor Code. At the trial
it was established that on several [p. 589] occasions minors entered the
restaurant and purchased beer. The Trial Judge, in sustaining the verdict
of the jury which convicted Koczwara on three counts, said in his Opinion
refusing a motion in arrest of judgment:
'In every instance the purchase was made from a bartender, not identified by name, and service to the boys was made by the bartender. There was no evidence that the defendant was present on any one of the occasions testified to by these witnesses, nor that he had any personal knowledge of the sales to them or to other persons on the premises.'
Koczwara appealed to the Superior Court which affirmed the convictions. We allowed allocatur.
The Majority of this Court is doing something which can find no justification in all the law books which ornament the libraries and enlighten the judges and lawyers in this Commonwealth. It sustains the conviction of a person for acts admittedly not committed by him, not performed in his presence, not accomplished at his direction, and not even done within his knowledge. It is stigmatizing him with a conviction for an act which, in point of personal responsibility, is as far removed from him as if it took place across the seas. The Majority's decision is so novel, so unique, and so bizarre that one must put on his spectacles, remove them to wipe the lenses, and then put them on again in order to assure himself that what he reads is a judicial decision proclaimed in Philadelphia, the home of the Liberty Bell, the locale of Independence Hall, and the place where the fathers of our country met to draft the Constitution of the United States, the Magna Charta of the liberties of Americans and the beacon of hope of mankind seeking justice everywhere.
The decision handed down in this case throws a shadow over that Constitution, applies an eraser to the Bill of Rights, and muffles the Liberty Bell which many decades ago sang its song of liberation from monarchial [p. 590] domination over man's inalienable right to life, liberty, and the pursuit of happiness. Our legal system is based on precedent. The decision of today will become a precedent on which future Dracos may feed to their absolutist and tyrannical content.
The Majority Opinion says:
'In the instant case, the defendant has sought to surround himself with all the safeguards provided to those within the pale of criminal sanctions. He has argued that a statute imposing criminal responsibility should be construed strictly, with all doubts resolved in his favor.'
But what is wrong with that? Why shouldn't the defendant call upon the safeguards which have come down to American freemen through centuries of struggle for maintaining and upholding the dignity of man's right not to be punished for what he has not done, directed, or approved?
The Majority builds its superstructure of rationalization on
a spongy foundation of fallacy and misconception. The Majority Opinion
'It is abundantly clear that the conduct of the liquor business is lawful only to the extent and manner permitted by statute.'
This is only affirming what was said more fully by the Trial Court, namely:
'The liquor business is an unlawful business and its conduct is only lawful to the extent and manner permitted by statute and the licensing of persons to sell liquor and other alcoholic beverages is an exercise of the police power.'
The liquor business is not an unlawful business. If it is unlawful, then the Commonwealth of Pennsylvania is engaged in an illegal business. Obviously this cannot be so. The liquor business is as lawful as any other business conducted openly in the Commonwealth. The Majority does not save the broad statement that the liquor business is unlawful by adding that it 'is lawful only to the extent and manner permitted by statute.' In fact, this supposed modification only accentuates [p. 591] the absurdity of the major premise. What the Majority says about the liquor business can equally be said of the milk business because the milk business obviously is lawful only to the extent that those who engage in milking cows, filling milk bottles and distributing them for profit, abide by the laws and regulations of the Commonwealth controlling and regulating the milk business.
The so-called liquor business in Pennsylvania is authorized by the Constitution of the United States [n. *] and by the laws of the Commonwealth of Pennsylvania. How then can it be unlawful? That people abuse the consumption of liquor is evident by a glance into any tavern, cocktail lounge or convention, and this includes conventions of people dedicated to upholding the law. However, the imprudently over-abundant individual consumption of liquor has nothing to do with the legality of the business itself.
* The liquor business enjoys the distinction of being the only business which has individually received the imprimatur of the U. S. Constitution. (Amendment XXI)
It is proper and highly commendable, of course, that the Legislature should place, as it has indeed placed, many restrictions on the sale of liquor. It has wisely proclaimed that liquor shall not be sold to minors, it has properly provided that minors shall not be allowed to frequent places where liquor is sold, but it has not said that the illegal sale of liquor can be charged to a person who has not made such a sale, has not directed it, has not condoned it, and is wholly ignorant of it.
The Majority introduces into its discussion a proposition which is shocking to contemplate. It speaks of 'vicarious criminal liability'. Such a concept is as alien to American soil as the upas tree. There was a time in China when a convicted felon sentenced to death could offer his brother or other close relative in his [p. 592] stead for decapitation. The Chinese law allowed such 'vicarious criminal liability'. I never thought that Pennsylvania would look with favor on anything approaching so revolting a barbarity.
The Majority Opinion attempts to give authority to its legislative usurpation by referring to twenty-five specific acts which are designated as unlawful in Section 494 of the Liquor Code. It is true that the General Assembly has enumerated certain proscribed situations, but nowhere has the Legislature said that a person may be tried and convicted for a personal act committed in the darkness of his absence and in the night of his utter lack of knowledge thereof.
Battling for some solid terrain upon which to stand to uphold its unstable position, the Majority points to an invisible phantom. It seeks to fortify its argument not by what it finds in the Code, but by what it does not find in the Code. It asserts that the omission of the word 'knowingly' from Section 494 'indicates a legislative intent to eliminate both knowledge and criminal intent as necessary ingredients of such offenses.' But a person's liberties should not hang on so thin a thread as 'indicates.' Where the sovereign body of the Commonwealth, the General Assembly, decides that a citizen is to be deprived of his life, liberty, or good name upon the commission of a certain act, it does not merely 'indicate' the drastic penalty awaiting the person who violates the specific legislative provision. It specifically and in mandatory language orders the penalty. If the Legislature intended to punish a person for acts committed by another, (assuming it had the constitutional power to do so), it would have declared that for certain acts committed within a liquor- dispensing establishment the proprietor will be criminally responsible 'whether present or not.' But the Legislature did not see fit to add such words. This Court is now adding those words and, in doing so, it is usurping the [p. 593] functions of the Legislature which, I repeat, it has no authority to do.
The Majority, apparently recognizing the feebleness of the verb
'indicates' to support an intention of the Legislature to punish for acts
committed without the presence of the accused, attempts to reinforce this
frail reed by pumping into its stalk the language of Section 491, namely,
'It shall be unlawful (1) For any person, by himself, or by an employe or agent, to expose or keep for sale, or directly or indirectly * * * to sell or offer to sell any liquor within this Commonwealth, except in accordance with the provisions of this act and the regulations of the board.'
It then goes on to say:
'The Superior Court has long placed such an interpretation on the statute. Commonwealth v. Speer, 1945, 157 Pa.Super. 197, 42 A.2d 94.'
But in the Speer case the proprietors of the liquor establishment
there involved were convicted of possessing adulterated liquors.
Possession is an offense of which a proprietor may be charged because conceivably
he may examine and inspect his stock to see what it embraces, but in this
case we have something different. Here the defendant is charged with
doing what someone else did. He was not charged with knowledge of
a status, he was charged with performing a physical act which concededly
was not performed by him or even within the periphery of his cognizance.
I repeat the Trial Court's findings:
'There was no evidence that the defendant was present on any one of the occasions testified to by these witnesses, nor that he had any personal knowledge of the sales to them or to other persons on the premises.'
While the facts in the Speer case are of course distinguishable from the facts in this case, as above shown, I would not accept the Speer case as authority in any event because it also makes the wholly insupportable[p. 594] statement that: 'The liquor business is unlawful.' [157 Pa.Super. 197, 42 A.2d 95] To say that the liquor business is unlawful is to envelop everyone employed in the business, whether he be a clerk in a State Store, the proprietor of a hotel, or the waitress in a restaurant, in a cloud of impropriety and assumed equivocal conduct. This is as unfair as it is contrary to law.
The defendant John Koczwara had been previously convicted of a violation of the Liquor Code and, because of that conviction, the Trial Court imposed, in addition to a fine of $500, a sentence of three months' imprisonment. The Majority Opinion finds the imprisonment part of the sentence contrary to law. Thus, in addition to the other things I have had to say about the Majority Opinion, I find myself compelled to add the bouquet of inconsistency. The Majority says that it cannot permit the sentencing of a man to jail 'for acts about which he had no knowledge and over which he had little control.'
'Such sentence of imprisonment in a case where liability is imposed vicariously cannot be sanctioned by this Court consistently with the law of the land clause of Section 9, Article I of the Constitution of the Commonwealth of Pennsylvania.'
But if the Majority cannot sanction the incarceration of a person for acts of which he had no knowledge, how can it sanction the imposition of a fine? How can it sanction a conviction at all?
The Majority enlarges on its inconsistency when it says:
'Our own courts have stepped in time and again to protect a defendant from being held criminally responsible for acts about which he had no knowledge and over which he had little control.'
If it is wrong to send a person to jail for acts committed by another, is it not wrong to convict him at all? There are those who value their good names to the extent that the see as much harm in a degrading criminal conviction as in [p. 595] a jail sentence. The laceration of a man's reputation, the blemishing of his good name, the wrecking of his prestige by a criminal court conviction may blast a person's chances for honorable success in life to such an extent that a jail sentence can hardly add much to the ruin already wrought to him by the conviction alone.
The Majority extends a sympathetic hand to prevent the jail doors
from clanging shut behind John Koczwara. It says:
'We would be utterly remiss were we not to do so under these facts.'
But is it not remiss in refusing to save Koczwara's constitutional prerogatives? Is it not remiss in not striking down this conviction which engrafts upon the criminal code something which up until this time has been unheard of in the Commonwealth of Pennsylvania? Is it not remiss in not reversing a conviction which cannot be based on any written provision of the law? Is it not remiss in giving to a criminal statute a broad interpretation (against the accused) instead of a strict interpretation as our decisions have proclaimed hundreds of times?
I conclude by saying that the Majority has been so remiss in affirming the conviction in this case that I myself would be remiss if I did not dissent against a decision which flouts the Constitution, ignores the Bill of Rights and introduces into the temple of the law the Asiatic rite of 'vicarious criminal liability.'
McBRIDE, Justice (dissenting).
I would agree that a man who sells liquor to a minor may be punished
even if he did not know that the person to whom he sold was a minor.
But in my opinion, the statute does not and cannot validly create an indictable
misdemeanor under which a liquor licensee is [p. 596] punished by a fine
or imprisonment, or both, for the act of an employee in selling to a minor,
where as here, the act itself is done without the licensee's knowledge,
consent, or acquiescence. I would reverse the judgment and discharge