People v. Montgomery

California Court of Appeal Nov 20, 1940 No. Crim. No. 536Published

Before: Marks

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Holding. The court held that the defendant's conviction for acting as a commission merchant without a license was supported by evidence of his solicitation of farm products, and that the trial court properly excluded evidence regarding a purported agency relationship that was not raised as a defense at trial.

Issues

Whether the defendant's solicitation of grapes for sale on commission without a license constituted a violation of the Agricultural Code.
Whether the trial court erred in excluding evidence regarding the defendant's alleged agency relationship with a licensed merchant.
Whether the defendant's failure to raise the agency defense at trial precluded him from asserting it on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is evident that there has been no miscarriage of justice so the judgment should not be reversed.”

MARKS, J. Defendant was charged, under the provisions of section 1273 of the Agricultural Code, with the crime of acting as a commission merchant on September 27, 1939, without having first secured a license as required by the provisions of section 1263 of the same code. He was found guilty and has appealed from the judgment and from the order denying his motion for new trial.

Miss Ruth Jenkins was a grower of grapes in Kings County, California. She entered into the following contract with defendant :

“SHIPPING AGREEMENT

“THIS AGREEMENT, entered into this 27th day of September, 1939, by and between C. R. MONTGOMERY, herein[576]after called the shipper; and, RUTH JENKINS, hereinafter called the grower:

“The shipper guarantees an advance of Twenty Dollars ($20.00) per ton roadside, on minimum of ONE HUNDRED TONS (100) and maximum TWO HUNDRED PIETY TONS (250) of muscat grapes—U. S. No. 1. Juice.

“The shipper agrees to haul and enclose said grapes in ear at a cost of not more than $10.50 per ton. Above $30.50 per ton, shipper and grower agree for a fifty-fifty division on net profit.

“Signed this 27th day of September, 1939:

“Ruth Jenkins

Grower

“(9/27/39) “C. R. Montgomery

Shipper’’

It is admitted that the contract was actually signed on October 2 or 3, 1939, and that at least two cars of grapes had been delivered and shipped before either of those dates. It is also admitted that defendant had no license to act as a commission merchant, although he had a dealer’s license effective September 1, 1939, and a broker’s license effective November 5, 1939. About 131-1/2 tons of grapes were shipped for Miss Jenkins.

It was the theory of the People during the trial, and it is now their theory, that the defendant, on or about September 27, 1939, solicited from Miss Jenkins, the producer, her crop of Muscat grapes for sale on commission; that he was not then licensed as a commission merchant; that his crime was complete when he solicited the grapes. (Subd. e, sec. 1261, and subd. g, sec. 1273, Agricultural Code.)

People v. Montgomery

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