People v. Wahl

*Supp. 773

SHAW, P. J.

Section 654a of the Penal Code prohibits advertising containing any statement which “is false or untrue, in any respect, or which is deceptive or misleading, and which is known, or by the exercise of reasonable care should be known, to be false or untrue, deceptive or misleading”. The controlling words here are: False, untrue, deceptive, misleading. Whatever construction may be put, in this statute, on the word “false”, which sometimes connotes an intent to deceive and sometimes does not (25 Cor. Jur. 436;

People

v.

Wong Fook Sam,

(1905) 146 Cal. 114, 118 [79 Pac. 848]), or on the word “deceptive”, which does not always imply such an intent (see Webster’s Dictionary quoted below), no such intent is implied by the word “misleading”. • Turning to Webster’s New International Dictionary, 1938 edition, we find the following definitions: “Mislead: To lead into a wrong way or path; to lead astray; to cause to err; to deceive.” “Deceptive: Tending to deceive; having power to mislead.” Under the word “Fallacious” appear the following definitions distinguishing somewhat synonymous words: " That is misleading which either with or without intention leads into error, especially of judgment. Deceptive . . . does not always imply intent to deceive.” Since the statute couples the adjectives above quoted from it by the disjunctive “or”, it is manifest that a violation of it may be committed by making statements which are merely misleading, that is, tend to lead astray or into error, without any specific intent to deceive, and it has been so held on a like statute.

(State

v.

Beacon Pub. Co.,

(1935) 141 Kan. 734 [42 Pac. (2d) 960, 964].)

The advertisement here in question is of that class. It reads: “Special sale Firestone Convoy tubes 50% off regular first-line tube list price.” The natural tendency of this was to cause the reader, if he knew no more than the advertisement told him, to believe that Convoy tubes were firSt-line tubes and were to be specially sold at 50 per cent off regular list price therefor. The fact was that Convoy tubes were not -first-line but third-line tubes, contrary to the implication from the advertisement. The advertisement, although literally true, was nevertheless deceptive and misleading in its implications and this is sufficient to bring it under the ban of the statute. The fact that a Firestone dealer, or other person who knew the whole truth, would not be led