People v. Circus Room, Inc.

FILES, J. Defendant, a corporation which operated an on-sale liquor establishment, was tried before a jury and convicted of offering for sale and keeping for sale two bottles of whisky which had been refilled or partly refilled in violation of subdivision (a) of section 26517 of the Health and Safety Code.1 Defendant appealed to the appellate department of the superior court, which affirmed by a divided court and then certified the cause to this court under rule 63 of the California Rules of Court* so as to settle an important question of law. The question is the interpretation of sec[687]tion 26517 as it applies to the evidence in this record. Pursuant to rule 62 of the California Rules of Court† this court ordered the case transferred to it.

The evidence on which the People’s case rests may be briefly stated. Two state inspectors entered defendant’s premises, examined the merchandise behind the bar and carried away two partially empty bottles labeled “Seagram’s V. O. Canadian Whisky” for laboratory analysis, Chemists who examined the contents of these bottles testified that one bottle contained dissolved solids in the proportion of 412 grams per 100 liters and the other 413 grams per 100 liters. These chemists were acquainted with similar analyses of the liquor taken from 47 sealed bottles of Seagram’s Y. O. Canadian Whisky tested over a period from 1945 to 1962. The solids content of those authentic samples ranged from 68 to 147 grams per 100 liters. On the basis of the discrepancy between the solids content of defendant’s whisky and the solids content of the authentic samples, the chemists formed the opinion that the two bottles found on defendant’s premises contained something other than Seagram’s Y. O. Canadian Whisky.

Defendant offered to prove by the testimony of the day bartender, the night bartender, and the relief bartender that one of the three had been on duty at all times from the time the premises were unlocked in the morning until the time they were locked at night for the past several months; that none of them had refilled any bottles and none had seen any bottles refilled. Defendant also offered the testimony of defendant’s president that he had not authorized anyone to change the one fluid for another in any bottle and that during the time he was present he saw no one effect such substitution. The trial court sustained the prosecutor’s objections to both of these offers of proof.

The parties are in agreement that section 26517, like other statutes designed to ensure pure food and drink properly labeled, imposes strict liability for keeping or offering the prohibited merchandise. If the bottles have been refilled by someone, it is immaterial that defendant had no part in it or knowledge of it. This principle is discussed in such analogous cases as In re Casperson, 69 Cal.App.2d 441 [159 P.2d 88], People v. Beggs, 69 Cal.App.2d Supp. 819 [160 P.2d 600], and People v. Schwartz, 28 Cal.App.2d Supp. 775 [70 P.2d 1017].