the liquor business without paying the county license tax and may not legally engage in such business in Brundidge under any circumstances because of the local prohibition statute referred to, the present bill is yet without equity, since chancery courts have no jurisdiction to enjoin the commission of offenses against the criminal laws of the state; and the proposed acts of the respondent, however illegal they may be, would not constitute a nuisance. True the bill in terms alleges that to carry on the proposed business in Brundidge would be a public nuisance; but this is a mere mistaken conclusion of law on the part of the pleader from the facts stated which do not warrant it. Taking all the facts appearing on the bill, whether well or illy pleaded, to be true, no case is made of equity cognizance." And in State v. Ehrlick, 65 W. Va. 700, 64 S. E. 935, 23 L.R.A. (N.S.) 691, the court said: “Jurisdiction in equity to abate nuisances is undoubted and of universal recognition. It is equally well settled that the state may institute suits for that purpose in proper cases. But it is nowhere asserted that either the state or private individual may maintain such a suit in any and all cases of nuisance. In other words, relief in equity by abatement is not the necessary sequence of the establishment of the charge of nuisance. Some nuisances are criminal while others are not. Criminal nuisances are abatable by criminal process, and, where this process is adequate, jurisdiction in equity fails, either because adequate legal remedy precludes jurisdiction in equity, or the subject matter is beyond the scope of equity jurisdiction. If a nuisance, purely criminal, injures or affects a private plaintiff in certain respects, he may resort to equity for relief, but the existence of neither a civil nor criminal public nuisance necessarily calls for interposition by a court of equity. private person cannot abate it, unless it is specially injurious or prejudicial to him, and the state cannot proceed against it in equity, if it be merely a criminal nuisance, unattended by injury to a personal or property right of some sort, creating necessity for prevention of irreparable injury." But in People v. St. Louis, 5 Gilman (Ill.) 351, 48 Am. Dec. 339, an action to enjoin the obstruction of a channel of the Mississippi River, thus creating a public nuisance, the court said: "The court of chancery may grant preventive as well as remedial relief, and this may be done where the act threatened would be punishable under the criminal laws as a nuisance. It was admitted that the court may prevent or remove a private nuisance, and it is equally clear that it may do so when the nuisance affects the public generally; although it is not always bound to interfere in either case. Νο better case could be desired to illustrate the

A

necessity of this jurisdiction than the one before us. If the acts here threatened would amount to a nuisance, the remedy offered by a criminal prosecution, would be entirely inadequate to the protection of the public franchise, for the works once erected, it is admitted on all hands that no human power could ever remove them, and such are the interests involved on the one hand, that the prospects of a prosecution which could only be followed by a light punishment, present no sufficient terrors, to restrain the parties."

A discussion of the cases wherein it has been held that a state may enjoin, through its proper officers, an act which is both a publie nuisance and a crime will be found in the notes to State v. Canty, 13 Ann. Cas. 787; State v. Marshall, Ann. Cas. 1914A 434, and Crighton v. Dahmer, 35 Am. St. Rep. 666. And the validity of statutes authorizing the issuance of an injunction against the commission of a crime is treated in the note to Ex p. Allison, 13 Ann. Cas. 684.

Corporations - Criminal Liability.

Under Revisal 1905, § 2831, subd. 6, defining "person" as extending to bodies corporate, unless the context clearly shows the contrary, and section 3432 providing that, if any person shall by any false pretense obtain any money or other thing of value with intent to defraud, such person shall be guilty of a felony and imprisoned or fined, a corporation may be convicted of obtaining money by false pretenses, as a corporation may be convicted of a crime requiring an intent, and the fact that it cannot be imprisoned does not exempt it from criminal liability.

[See note at end of this case.]

False Pretenses

[366] CLARK, C. J.-The defendant was indicted for obtaining money by false pretenses, under Revisal, 3432, by selling to J. N. Smith and C. M. Henderlite a certain amount of coke represented to be one ton in weight, whereas it weighed 1,750 pounds, the defendant well knowing the pretense to be false. Said Henderlite was a competitor in trade of the defendant company, and he suspected that it was selling short weight. On 8 January, 1913, he called up the office of the defendant over the phone and asked the price of coke. The reply was $5. He ordered a ton sent to J. N. Smith at a certain corner, and the defendant delivered the order as one ton and received payment. Henderlite then hauled the coke to the scales and found that it weighed only 1,750 pounds.

There are practically but two questions presented that require consideration:

[367] 1. The defendant moved in arrest of judgment on the ground of fatal variance in that the indictment charged false pretense "with intent to deceive C. M. Henderlite and J. N. Smith," whereas it appears from the evidence that J. N. Smith was a fictitious person and C. M. Henderlite was not known in the transaction either directly or indirectly, and was not deceived. Revisal, 3432, provides: "It shall be sufficient in any indictment for obtaining or attempting to obtain any such property by false pretenses to allege that the party did the act with intent to defraud, without alleging an intent to defraud any particular person and without alleging any ownership of the chattels, money, or valuable securities; and, on the trial of

any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to defraud." The charge as to the persons intended to be cheated was therefore surplusage and immaterial. State v. Ridge, 125 N. C. 658, 34 S. E. 440.

2. The other exception is that a corporation cannot be convicted of a crime which requires an intent.

In State v. Rowland Lumber Co. 153 N. C. 612, 69 S. E. 58, it is said: "The first ground, that corporations cannot be convicted of an offense where the intent is an ingredient, is no longer tenable. They are as fullly liable in such cases as individuals. They are liable for libel, assaults and battery, etc. Corporate existence can be shown, though not charged in the bill. State v. Shaw, 92 N. C. 768.”

This is fully sustained by all the late authorities. In U. S. v. MacAndrews, etc. Co. 149 Fed. 823, it is held that a corporation can be held criminally liable for conspiracy or any other crime requiring the proof of an intent. The Court says, on page 835: "It was long contended that even civil liability arising from evil intent could not be visited upon an artificial being. This fiction has vanished, and corporate liability on the criminal side permanently established, even for assault. Lake Shore, etc. R. Co. v. Prentice, 147 U. S. 101, 13 S. Ct. 261, 37 U. S. (L. ed.) 97, for conspiracy (citing many cases). It was even longer denied that a corporation could be indicted at all. Reg. v. Great North of England R. Co. 9 Q. B. 315, 58 E. C. L. 315. In People v. Clark, 8 N. Y. Crim. 169, 179, 14 N. Y. S. 642, [368] the Court declared that the legal reason upholding this contention was the strange argument that a corporation could not plead in person, and therefore could not be called on to answer criminally. It certainly is now admitted law that not only may corporations (the art of pleading by attorney having been discovered) be indicted for nonfeasance, but for such deeds of misfeasance as are complete by the mere doing a thing prohibited, e. g.: violation of the 8-hour law, U. S. v. John Kelso Co. 86 Fed. 304; receiving usurious interest, State v. First Nat. Bank, 2 S. D. 568, 51 N. W. 587; not stopping gaming at a fair, Com. v. Pulaski County Agricultural, etc. Assoc. 92 Ky. 197. These defendant corporations claim that since in conspiracy evil intent is of the essence of the crime, accusation is futile. This is but the remnant of a theory always fanciful and now in process of abandonment. In Telegram Newspaper Co. v. Com. 172 Mass. 294, 44 L.R.A. 159, 70 Am. St. Rep. 280, it was held: 'We think that a corporation may be liable criminally for

certain offenses of which a specific intent may be a necessary element. There is no more difficulty in imputing to a corporation a specific intent in criminal proceedings than in civil.' To same effect State v. Baltimore, etc. R. Co. 15 W. Va. 362, 36 Am. Rep. 803." In People v. Star Co. 135 App. Div. 517, 120 N. Y. S. 498, it is held that a corporation can be convicted of a malicious libel, the Court adopting the following statement by Bishop in his New Crim. Law, sec. 417: "Within the sphere of its corporate capacity and to an undefined extent beyond, whenever it assumes to act as a corporation it has the same capabilities of criminal intent and of act-in other words, of crime as an individual man sustaining the like relations, ... Some have stumbled on the seeming impossibility of the artificial and soulless being, called a corporation, having an evil mind, or criminal intent. But the author explained in another work that, since a corporation acts by its officers and agents, their purposes, motives, and intent are just as much those of the corporation as are things done."

It was recently said by the Supreme Court of the United States: "It is true that there are some crimes which in their nature cannot be committed by corporations. But there is a large class of offenses wherein the crime consists in purposely [369] doing things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purpose of their agents, acting within the authority conferred upon them." 212 U. S. 481, 29 S. Ct. 304, 53 U. S. (L. ed.) 613.

In Grant v. U. S. 114 Pac. 955, it is held: "A corporation can form a criminal intent and have the knowledge essential, provided the officers representing it have such knowledge or intent." To the same effect, U. S. v. Union Supply Co. 215, U. S. 50, 30 S. Ct. 15, 54 U. S. (L. ed.) 87, and Standard Oil Co. v. State, 117 Tenn. 664, 100 S. W. 705, 10 L.R.A. (N.S.) 1015, in which last the Court cited many cases holding "the criminal intent of the agent is imputed to the corporation."

Indeed, Revisal, 2831 (6), provides: "The word 'person' shall extend, and be applied, to bodies politic and corporate as well as to individuals, unless the context clearly shows to the contrary." The word "person" in Revisal, 3432, therefore, embraces corporations. This is fully discussed and sustained upon a similar statute in State v. Belle Springs Creamery Co. 83 Kan. 389, 111 Pac. 474, L.R.A.1915D 515.

Indeed, so many businesses of every kind are now carried on by corporations that it would render nugatory many criminal statutes for the protection of the public if they

did not apply to the misconduct of corporations when the statute would apply to the same conduct by an individual. In this present case the business of selling coal and ice is carried on by a corporation, and it violated the statute by the false pretense of selling a ton of coke when it delivered in fact only 1,750 pounds, intending to cheat, as fully as an individual could have done. It is true that when the statute imposes a penalty of a fine or imprisonment, that only the fine can be placed upon a corporation. But this is no reason why that should not be imposed. The corporation should not be wholly exempted from punishment because it cannot be imprisoned. The remedy is that the officer or agent may be indicted jointly with the corporation as a coprincipal or accessory, as the case may be, as has been done in the enforcement of the statutes against illegal trusts.

The defendant contends that he is not guilty, because the prosecutor was not deceived. Of course, to constitute the offense the conduct of the defendant must be "intended and calculated to [370] deceive, and did deceive." The evidence was sufficient to establish these facts, and was properly submitted to the jury, and it was so found by their verdict. It is true, the prosecutor had a strong suspicion that the defendant was selling by short weight, but he could not have testified to it as a fact. His testimony is: "I have to buy from you to find out whether you were (selling by short weight) or not." In another place he says that to the best of his judgment the defendant was selling in this mode, but he did not know this and could not know it till he had tested the matter, as he did.

The defendant offered a ton of coke for $5, the offer was accepted and it was paid for as a ton. The prosecutor acted in good faith, because he paid the purchase price for a ton, and on weighing it, the only possible method, he found that there was not a ton. He was therefore induced to part with his $5 in reliance upon the assertion of the defendant that a ton of coke had been sent him. He could not possibly know beforehand whether this would be done or not, nor indeed after he saw the coke until he had actually weighed it. However much he might have mistrusted the defendant's representation, he relied on it by paying the $5 charged.

A very similar case is State v. Smith, 152 N. C. 798, 67 S. E. 508, 30 L.R.A. (N.S.) 946, for selling whiskey contrary to the statute, in which case a police officer, suspecting the defendant, employed one to buy whiskey from the defendant and furnished the money. The defendant, like all victims caught in a trap, viciously assailed the trap. He said he ought not to be punished, because the prosecutor had "connived" at his offense. This Court

gaid:

"It is not the motive of the buyer, but the conduct of the seller, which is to be considered," and held that the defendant was properly convicted. This was approved in State v. Hopkins, 154 N. C. 622, 70 S. E. 394, where Brown, J., says: "However much the defendant, when caught, may criticise the methods used to catch him, it has been held that the transaction is, so far as the defendant is concerned, a violation of law, if the evidence is deemed by the jury sufficient proof of the facts."

No error.

NOTE.

Criminal Liability of Corporation for Act of Misfeasance Other than Homicide.

I. Introductory, 459.

II. Liability in General:

1. Rule Stated, 459.

2. Reason of Rule, 460.

III. Crime Requiring Specific Intent, 461.
IV. Corporation as "Person" within Penal
Statute, 462.

V. Particular Crime:

1. Conspiracy, 462.

2. Contempt, 463.

3. Larceny, 463.

4. Libel, 463.

5. Nuisance Generally, 463.

6. Obstruction of Public Road or Waterway, 463.

7. Unjust Discrimination, 464.

8. Violation of Bankruptcy Law, 467. 9. Violation of Labor Law, 465. 10. Violation of Liquor Law, 465. 11. Miscellaneous, 465.

VI. Punishment, 465.

1. Introductory.

In the development of the law relating to the criminal liability of corporations, liability for a failure to perform a duty is more readily deemed to be within the scope of corporate power than liability for a positive act. (See State v. Ohio, etc. R. Co. 23 Ind. 362, and State v. Great Works Mill, etc. Co. 20 Me. 41, 37 Am. Dec. 38.) The cases concerning the liability of a corporation to indictment for nonfeasance are collated in the note to Southern R. Co. v. State, 5 Ann. Cas. 411. The purpose of the present note is to consider cases concerning the criminal liability of a corporation, as affected by its corporate character, for acts of misfeasance other than homicide. The liability of a corporation to indictment for homicide is fully treated in the notes to People v. Rochester R. etc. Co.

16 Ann. Cas. 837, and Com. v. Illinois Cent. R. Co. Ann. Cas. 1915B 617.

II. Liability in General.

1. RULE STATED.

་

The rule is now firmly established that a corporation can by act of misfeasance render itself criminally liable.

England.-Reg. v. Great North of England R. Co. 9 Q. B. 315, 58 E. C. L. 315, 2 Cox C. C. 70, 10 Jur. 755, 16 L. J. M. C. 16; Pearks v. Ward [1902] 2 K. B. 1. See also Pharmaceutical Soc. v. London, etc. Supply Assoc. L. R. 5 App. Cas. 857, 49 L. J. Q. B. 736, 28 W. R. 957, 43 L. T. N. S. 389.

Canada, D'Ivry v. World Newspaper Co. 17 Ont. Pr. 387.

United States.-New York Cent. etc. R. Co. v. U. S. 212 U. S. 481, 29 S. Ct. 304, 53 U. S. (L. ed.) 613; U. S. v. John Kelso Co. 86 Fed. 304; U. S. v. MacAndrews, etc. Co. 149 Fed. 823; U. S. v. New York Herald Co. 159 Fed. 296; U. S. v. Young, etc. Co. 170 Fed. 110; U. S. v. Pacific Live Stock Co. 192 Fed. 443; Kaufman v. U. S. reported in full, post, this volume, at page 466; Joplin v. Mercantile Co. v. U. S. reported in full, post, this volume, at page 470.

Alaska.-U. S. v. Alaska Packers' Assoc. 1 Alaska 217.

Arizona. Grant Bros. Const. Co. v. U. S. 13 Ariz. 388, 114 Pac. 955,

Arkansas.-St. Louis, etc. R. Co. v. State, 52 Ark. 51, 11 S. W. 1035.

Colorado.-Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 Pac. 924, 105 Am. St. Rep. 74.

Florida. See Palatka, etc. R. Co. v. State, 23 Fla. 546, 3 So. 158, 11 Am. St. Rep. 395. Georgia.-Southern Express Co. v. State, 1 Ga. App. 700, 58 S. E. 67; R. M. Rose Co. v. State, 4 Ga. App. 588, 62 S. E. 117.

Illinois. Chicago, etc. Coal Co. v. People, 214 Ill. 421, 73 N. E. 770. See also People v. Chicago, 256 Ill. 558,, Ann. Cas. 1913E 305, 100 N. E. 194, 43 L.R.A. (N.S.) 954.

Indiana. State v. Louisville, etc. R. Co. 86 Ind. 114; State v. Baltimore, etc. R. Co. 120 Ind. 298, 22 N. E. 307; State v. Sullivan County Agricultural Soc. 14 Ind. App. 369, 42 N. E. 963; Paragon Paper Co. v. State, 19 Ind. App. 314, 49 N. E. 600; Acme Fertilizer Co. v. State, 34 Ind. App. 346, 72 N. E. 1037, 107 Am. St. Rep. 190. Compare State v. Ohio, etc. R. Co. 23 Ind. 362.

Iowa. See State v. Chicago, etc. R. Co. 77 Ia. 442, 42 N. W. 365, 4 L.R.A. 298.

Kansas State v. Belle Springs Creamery Co. 83 Kan. 389, 111 Pac. 474, L.R.A.1915D 515.

Kentucky. Cincinnati R. Co. v. Com. 80 Ky. 137; Com. v. Paducah, 6 Ky. L. Rep.

292, abstracts; Small v. Com. 134 Ky. 272, 120 S. W. 361. See also Com. v. Pulaski County Agricultural, etc. Assoc. 92 Ky. 197, 17 S. W. 442.

Maine.-See State v. Portland, 74 Me. 268, 43 Am. Rep. 586, overruling State v. Great Works Mill, etc. Co. 20 Me. 41, 37 Am. Dec. 38.

Massachusetts.-Com. v. Nashva, etc. R. Corp. 2 Gray 54; Com. v. New Bedford Bridge, 2 Gray 339; Com. v. Vermont, etc. R. Corp. 4 Gray 22; Telegram Newspaper Co. v. Com. 172 Mass. 294, 52 N. E. 445, 70 Am. St. Rep. 280, 44 L.R.A. 159; Com. v. New York Cent. etc. R. Co. 206 Mass. 417, 19 Ann. Cas. 529, 92 N. E. 766; Com. v. Graustein, 208 Mass. 38, 95 N. E. 97.

Michigan.--People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L.R.A. 722.

Missouri.-See State v. White, 96 Mo. App. 34, 69 S. W. 684.

New Jersey-State v. Morris, etc. R. Co. 23 N. J. L. 360; State v. Warren R. Co. 29 N. J. L. 353; State v. Passaic County Agricultural Soc. 54 N. J. L. 260, 23 Atl. 680.

New York. People v. John H. Woodbury Dermatological Institute, 192 N. Y. 454, 85 N. E. 697, affirming 124 App. Div. 877, 109 N. Y. S. 578; People v. Star Co. 135 App. Div. 517, 120 N. Y. S. 498; People v. Dunbar Contracting Co. 165 App. Div. 59, 151 N. Y. S. 164, affirmed 215 N. Y. 416, 109 N. E. 554. See also People v. Clark, 8 N. Y. Crim. 169, 179, 14 N. Y. S. 642.

North Carolina.-State v. Western North Carolina R. Co. 95 N. C. 602; State v. Southern R. Co. 119 N. C. 814, 25 S. E. 862, 56 Am. St. Rep. 689; State v. Southern R. Co. 122 N. C. 1052, 30 S. E. 133, 41 L.R.A. 246; State v. Rowland Lumber Co. 153 N. C. 610, 69 S. E. 58. See also State v. Southern R. Co. 145 N. C. 495, 59 S. E. 570, 13 L.R.A. (N.S.) 966. And see the reported case. Pennsylvania.-Northern Cent. R. Co. v. Com. 90 Pa. St. 300; Com. v. Lehigh Valley R. Co. 165 Pa. St. 162, 30 Atl. 836, 27 L.R.A. 231.

South Dakota.-State v. Security Bank, 2 S. D. 538, 51 N. W. 337; State v. First Nat. Bank, 2 S. D. 568, 51 N. W. 587.

Tennessee.-Louisville, etc. R. Co. v. State, 3 Head (Tenn.) 523, 75 Am. Dec. 778; State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663; State v. Louisville, etc. R. Co. 91 Tenn. 145, 19 S. W. 229; Nashville, etc. Ridge Turnpike Co. v. State, 96 Tenn. 249, 34 S. W. 4; Standard Oil Co. v. State, 117 Tenn. 618, 100 S. W. 705, 10 L.R.A. (N.S.) 1015.

Rhode Island.-State v. Eastern Coal Co. 29 R. I. 254, 17 Ann. Cas. 96, 70 Atl. 1, 132 Am. St. Rep. 817.

Termont.-State v. Ver:nont Cent. R. Co. 27 Vt. 103.

Washington.-State v. Paggett, 8 Wash. 579, 36 Pac. 487.

West Virginia.-State v. Baltimore, etc. R. Co. 15 W. Va. 362, 36 Am. Rep. 803.

In an

There have been decisions contrary to this rule. Anonymous, 12 Mod. (Eng.) 559, State v. Ohio, etc. R. Co. 23 Ind. 362 (changed by statute-see Indiana citations under general rule, supra); State v. Great Works Mill, etc. Co. 20 Me, 41, 37 Am. Dec. 38 (overruled in State v. Portland, 74 Me. 268, 43 Am. Rep. 586); Com. v. Swift Run Gap Turnpike Co. 2 Va. Cas. 362 (decided in 1823).. Anonymous case, 12 Mod. (Eng.) 559, the following was reported: "Per Holt, Chief Justice. A corporation is not indictable, but the particular members of it are." Concerning this report, the court in State v. Morris, etc. R. Co, 23 N. J. L. 360, said: "It may well be doubted whether this is not one of those cases which extorted from Lord Holt the bitter complaint of his reporters, that the stuff which they published would make posterity think ill of his understanding, and that of his brethren on the bench.' Aside from the apochryphal character of the report, it is hardly credible that so learned and accurate a judge as Lord Holt should have laid down the broad proposition imputed to him by his reporter. It is certain that while he was chief justice of the King's Bench, there were cases before that court of indictments against quasi corporations for neglect to repair roads and bridges."

In two jurisdictions it has been held that corporations are indictable only in those cases in which the legislature has specifically provided therefor. State v. Ohio, etc. R. Co. 23 Ind. 362; State v. Sullivan County Agricultural Soc. 14 Ind. App. 369, 42 N. E. 963; Paragon Paper Co. v. State, 19 Ind. App. 314, 49 N. E. 600; State v. Cincinnati Fertilizer Co. 24 Ohio St. 611; Leo Ebert Brewing Co. v. State, 25 Ohio Cir. Ct. Rep. 601. See also State v. West Baden Springs Co. 42 Ind. App. 282, 85 N. E. 724.

2. REASON OF RULE.

The basis of the general rule heretofore stated was set forth in Com. v. New Bedford Bridge, 2 Gray (Mass.) 339, wherein the court said: "The indictment in the present case is for a nuisance. The defendants contend that it cannot be maintained against them, on the ground, that a corporation, although liable to indictment for nonfeasance, or an omission to perform a legal duty or obligation, are not amenable in this form of prosecution for a misfeasance, or the doing of any act unlawful in itself and injurious to the rights of others. There are dicta in some of the early cases which sanction this broad doctrine, and it has been thence copied