#### State *v.*The Great Atlantic & Pacific Tea Company of America

(No. 6985)

Submitted October 6, 1931.

Decided October 13, 1931.

*J. W. Vandervort*and *R. E. Bills,*for plaintiff in error.

*Howard B. Lee,*Attorney General and *W. Elliott Nefflen,*Assistant Attorney General, for the State.

Hatcher, Judge :

Defendant appeals from conviction of a short weight sale, in alleged violation of Code 1923, chapter 59, section 29.

*149Tbe prosecuting witness testified tbat sbe asked for a pound of cbeese in one of defendant’s stores in Parkersburg, on or about February 6, 1930, and tbat tbe cbeese was quoted to ber at 29c a pound; tbat one of defendant’s clerks picked up a piece of cbeese, which bad already been cut, and after weigh-' ing it, wrapped and delivered it to tbe witness, who paid 29c therefor; that tbe smallness of tbe package aroused her suspicion and sbe bad it weighed in a nearby store, where it weighed about 12 1-2 ounces. Tbe package was then turned over to tbe local sealer of weights and measures, who testified tbat it weighed 12 1-2 ounces; that several months before this occurrence and a few days afterwards, be tested the scales of the defendant and in each instance found them to weigh correctly.

Tbe clerk who made tbe sale says now sbe lias no memory of tbe transaction, due to lapse of time and the large number of customers served daily in tbe store. The defendant proved tbat all employees, including tbe one who made tbe sale, had, prior thereto, received instructions to give full weight, and not to charge for more weight than was given; tbat it has 15,000 stores in the United States; and that this is tbe only incident of this kind reported to have occurred in any of them, in tbe knowledge of several of its officials who were witnesses.

Tbe part of tbe statute applicable is as follows: “Any person who, by himself or by his servanUor agent, or as tbe servant or agent of another person shall knowingly offer or expose for sale, sell, use in the buying or selling of any commodity or thing or for hire or award, or retain in his possession a false weight or measure or weighing or measuring device which has not been sealed by a sealer or deputy sealer of weights and measures within one year, or shall dispose of any measure, or weighing or measuring device contrary to law, or remove any tag placed thereon by a sealer or deputy sealer of weights and measures; or who shall sell or offer or expose for sale less than the quantity he represents * *' * shall be guilty of a misdemeanor * *

It is too elementary to call for citation of authority that under the common law it has been the general rule for centuries that there can be no crime without criminal intent. (Such *150intent is of course tbe offspring of knowledge express or implied.) It is contended by tbe state, however, tbat tbe legislature bas tbe power to eliminate tbe element of intent from statutory crimes. Even so, tbat purpose should be so clearly expressed as to leave no room for doubt. Tbe brief for tbe state analyzes tbe statute as follows: ‘ ‘ This section is divisible into five separate parts, eacb part specifically separated by a semi-colon. On examination of this statute, it is noted significantly tbat the word, ‘knowingly’, is in tbe first part only, and tbat tbis word is not contained in any of the subsequent parts of tbis section. In anticipation of tbe defense argument on tbis point, we respectfully submit tbat tbe word, ‘knowingly’, was deliberately omitted from tbe other separate parts contained within tbis section.” In construing tbe statute “tbe subject matter of tbe prohibition, as well as tbe language of tbe statute” may be considered. 16 C. J., p. 77. Tbe use of a false weight and a short weight sale are equally fraudulent,and equally reprehensible; therefore no reason whatsoever is apparent why tbe legislature should make knowledge an element of tbe one crime, yet dispense with it as an element of tbe other. Where a merchant employs a large number of salesmen, as does tbe defendant, it is physically impossible for him to supervise personally every sale. Consequently, tbe construction of tbe statute sought by tbe state would make criminal an act which tbe utmost good faith and care of tbe merchant could not prevent. Such a departure from tbe common law, so violative of traditional conceptions of justice and so unfair to honorable merchants, is not to be inferred from tbe mere placement of a semi-colon, as contended by tbe state. We are therefore of the opinion tbat tbe word “knowingly” as applied directly to the use of a false weight, also extends to the sale of a short weight, and that the state bas made no case against the defendant because of its failure to show knowledge (express or implied) of the short weight of the alleged sale.

The judgment of the lower court is reversed, the verdict of the jury set aside, and a new trial awarded the defendant.

*Judgment reversed, set aside.*