State v. Miclau, Jr.

Kovachy, J. Defendant, Theodore Miclau, Jr., was found guilty of contributing to the delinquency of a female minor child in the Juvenile Court of Cuyahoga County. He appeals to this court on questions of law. It appears that two female minor children, Rose Marie McTigue, 15 years old, and Carol Mitman, 13 years old, met in downtown Cleveland on the evening of October 21, 1955. They ate a meal at the China Lane restaurant and were then joined by another female minor child, Audrey Galomboski, 16 years old, around 8:30 p. m. in front of the Allen Theatre. According to the testimony of Rose and Carol, the following restaurants were then visited by all three girls : Clark’s, where Audrey had a meal and each drank a beer; Stouffer’s, where each drank a martini; Black Angus, where each drank a gin with either 7 Up or Squirt; Pierre’s, where one drank a cup of coffee. Audrey thereafter took a cab home, while Rose and Carol walked to the Central Police Station, a few blocks away, to visit a police newspaper reporter. The girls found the reporter in his headquarters. At the time they were noticeably under the influence of intoxicating liquor. It was near midnight. The police were called and the girls were interviewed by policewoman Cecelia L. Rogers and lieutenant Norman Bayless. Up *348 on information received from the girls, these police officers decided to “set a trap” for the purchase of intoxicating liquor at the places claimed to have been visited by them and the girls were to be used as decoys. Two members of the vice squad were asked to participate in the undertaking. These officers, in turn, communicated with three state liquor agents, who, also, agreed to take part. The girls were told that if they would co-operate, “there would be no court action taken against them.” The reporter, although a married man twenty-four years of age, and a mere acquaintance of Rose, agreed to go along. The conspirators drove away from the Central Police Station in three automobiles around 1:30 a. m. With the exception of the Black Angus Restaurant located at East 14th and Euclid, all the restaurants mentioned by the girls were closed. The party, thereupon, descended upon it according to plan, with the exception of Carol who, in the meantime, had become hysterical and had to be left out and was, subsequently, treated by a physician. The men from the vice squad entered the Black Angus first and proceeded to the bar. After five minutes, Rose entered with the reporter. Rose was dressed in a black dress and had on a little black hat with a short veil. She also had a red coat on and wore high heels. The reporter had a marriage ring on one of his fingers. There are two entrances—one to the bar and one to the restaurant. They walked to the one leading to the restaurant, where they were met by the defendant, the night manager. He informed them that the restaurant was closed but, when told by the reporter that they had come to buy a drink, directed them to the bar, where they took seats in a booth. The policewoman followed close by and went directly to a telephone in the bar, from which position she watched the proceedings while talking to police headquarters. The couple was served by a waitress. Rose ordered a gin and Seven-Up, the reporter bourbon and ginger ale. After each was served, the reporter paid for them. The drink furnished Rose was confiscated by one of the men from the vice squad before she drank any of it. It was poured into a sample bottle furnished by the state liquor agents, who entered the bar at the moment the liquor was seized. Despite the promise made to her, Rose was charged in a petition filed in the Ju *349 venile Court with being a delinquent child and was found to be such by a judge of that court on November 22, 1955. The defendant herein was charged with contributing to the delinquency of Rose, and was found guilty on January 13, 1956, by the same judge, trial by jury having been waived, the incidents occurring during the execution of the conspiracy being the basis for the charge. The six assignments of error of the defendant-appellant can be compressed into three: 1. That the trial court erred in finding the manager guilty of the crime of contributing to the delinquency of a minor child since he did not participate in the sale of the intoxicating liquor to her, had no knowledge of the sale, and had previously given express instructions to his employees to guard against sales of intoxicating liquor to minors. 2. That the facts made out a case of entrapment which was a complete defense under the law. 3. Other and numerous errors prejudicial to the rights of the defendant, as appears from the record of the case. A majority of this court has no difficulty in resolving assignments of error one and two against the defendant. 1. By the weight of authority in states where the law with respect to sales to minors does not require intent or knowledge, a manager of a bar, licensed to sell intoxicating liquor to the public, is criminally responsible for a sale of intoxicating liquor to a minor child by one of his employees, whether or not he personally participates in or has knowledge of such sale, and even though the sale is made contrary to instructions given such employee. The rule is well stated in 15 Ruling Case Law, 358, Section 221, as follows: “* * * a licensee cannot put his clerks in his shoes, give them the benefit of the license issued to him on the confidence reposed in his moral character, and not be held responsible for their violations of law in the scope of such employment; he cannot set up his bar, receive its profits, and abdicate his duties. The duty is imposed on him that the law shall not be violated by an unlawful sale, and having put it in the power of his agent to sell, the agent acts in the principal’s stead and at his peril, and *350 the latter cannot therefore escape responsibility because an unlawful sale was made in his absence, and in violation of his express instructions.” (Emphasis supplied.) Partridge v. State, 88 Ark., 267, 114 S. W., 215; State v. Pigg, 78 Kan., 618, 97 P., 859; State v. Anderson, 127 La., 1041, 54 So., 344; State v. Gilmore, 80 Vt., 514, 68 A., 658; State v. Constatine, 43 Wash., 102, 86 P., 384; State v. Nichols, 67 W. Va., 659, 69 S. E., 304; State v. Kittelle, 110 N. C., 560, 15 S. E., 103; 115 A. L. R., 1230; 30 American Jurisprudence, 414 and 424; State v. Kominis, 73 Ohio App., 204, 55 N. E. (2d), 344; State v. Davis, 95 Ohio App., 23, 117 N. E. (2d), 55. The case of Anderson v. State, 22 Ohio St., 305, has come to our attention. The syllabus reads: “1. Where, in a prosecution for unlawfully selling intoxicating liquor, it appears by the evidence for the state, that the sale was made by the agent of the defendant in charge of the establishment where the liquor was sold, it is competent for the defendant to rebut the presumption of prima facie agency, which the evidence makes against him, by showing that the sale was, in fact, made without his authority and against his directions.” The laws dealing with intoxicating liquor in the state of Ohio have undergone much change since that case was decided 85 years ago. Under modern concepts, licensees, who take the full benefits of the privileges given them, are held strictly accountable for the conduct of their business in keeping with law. It would be contrary to the public interest to permit such licensee to escape liability for violation of law by an employee directly under his control and acting within the scope of his authority when selling intoxicating liquor to a minor child under a statute that does not include the element of intent or knowledge. And so, where a minor child, by reason of such sale, is found to be a delinquent child by a Juvenile Court, as here, it necessarily must follow that the manager is amenable to prosecution for “contributing to the delinquency” of such minor child. State v. Sobelman, 199 Minn., 232, 271 N. W., 484. 2. The law in Ohio with respect to entrapment follows the majority rule. Where a sale of intoxicating liquor in violation of law is made in the regular course of business without the *351 thought of the violation being implanted in the mind of the accused by some person, there is no entrapment. Entrapment, thus, is where a person is induced to commit a crime he did not intend to commit and which he would not have committed but for some artifice, spoken or acted. In other words, it is not entrapment merely to give the person the opportunity to violate the law; it is entrapment to induce a person to commit a crime which he would not have committed except for the affirmative prodding on the part of the entrapper for the purpose of securing a conviction of the one entrapped. In Langdon v. Board of Liquor Control, 98 Ohio App., 535, 130 N. E. (2d), 430, it is written on page 537, quoting from 18 A. L. R., 146, and found in 12 Ohio Jurisprudence, 80, Section 38: “Where the doing of a particular act is a crime regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused, and the criminal offense is completed, the fact that an opportunity is furnished, or that the accused is aided in the commission of crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense.” See, also, Davis v. State, 26 Ohio App., 340, 159 N. E., 575; Sorgen v. State, 36 Ohio App., 281, 172 N. E., 835; State v. Henning, 83 Ohio App., 445, 78 N. E. (2d), 588; State v. Gutilla, 94 Ohio App., 469, 116 N. E. (2d), 208; State v. McCornish, 59 Utah, 58, 201 P., 637; State v. Feldman, 150 Mo. App., 120, 129 S. W., 998. The writer of this opinion is of the belief that a question arises which, though not directly raised by the defendant, comes within the purview of assignment of error No. 3, and transcends all other considerations in the case. I consider it reprehensible for law enforcement officers to impel a fifteen-year-old girl to enter a public bar, as a decoy, at 1:30 o’clock in the morning, in the company of a married man, for the express purpose of buying intoxicating liquor, in violation of the criminal laws of the state of Ohio. By these tactics they (1) made her amenable to a charge of being a delinquent child; (2) transgressed common decency by acting without the consent of her parents; (3) flouted the crimi *352 nal laws that they had sworn to uphold by violating Section 2151.41, Revised Code, prohibiting the abuse, abetting or contributing to the delinquency of a child; and (4) disregarded Section 2151.40, Revised Code, requiring municipal departments and officials to “render all assistance and co-operation” to further the objects of the Juvenile Court Act. Section 4301.63, Revised Code, reads: “No minor under the age of 21 years shall purchase intoxicating liquor, nor shall a minor under the age of 18 years purchase beer.” Section 2151.02, Revised Code, provides: “As used in Sections 2151.01 to 2151.54, inclusive, of the Revised Code, ‘delinquent child’ includes any child: “ (A) Who violates any law of this state, the United States, or any ordinance or regulation of a subdivision of the state.” Section 2151.41, Revised Code, provides: “No person shall abuse a child or aid, abet, induce, cause, encourage, or contribute to the dependency, neglect, or delinquency of a child or a ward of the Juvenile Court, or act in a way tending to cause delinquency in such child. * * * ” The state of Ohio is in the forefront among the states of this country in the enactment of progressive, humanitarian and benevolent laws for the protection of its children. The object of these laws is to help keep children away from improper influences and harmful environment during their formative years. The state has gone to great lengths to establish institutions at high cost to the taxpayers in order to do everything known to the social sciences to give the weak and immature child a fair fighting chance to develop into an honest, sober and virtuous person so necessary for good citizenship. In passing these laws, the Legislature had the welfare of each child in mind. It is stated in Travis v. State, 12 C. C. (N. S.), 374, at page 376, 21 C. D., 492, 494: “It is not the purpose of the act to punish the child, but to take it out of environments, which if continued would result disastrously to it as well as to society, and thereby create a standing menace to the state; and to supply it with opportunities for good moral training and physical comforts and support.” In 23 Harvard Law Review, pages 109 and 110: *353 “To get away from the notion that the child is to be dealt with as a criminal; to save it from the brand of criminality, the brand that sticks to it for life; to take it in hand and instead of first stigmatizing and then reforming it, to protect it from the stigma—this is the work which is now being accomplished by dealing even with most of the delinquent children through the court that represents the parens patriae power of the state # # * J? “Every statute which is designed to give protection, care, and training to children, as a needed substitute for parental authority, and performance of parental duty, is but a recognition of the duty of the state, as the legitimate guardian and protector of children where other guardianship fails.” To carry out this philosophy for the benefit of all children, the county of Cuyahoga has built an expensive and modern Juvenile Court building and provided for two juvenile judges, a corps of probation officers, psychologists and attendants to carry out this worthy purpose. Under their program, each child is considered valuable and precious to the community and each child gets individual attention commensurate with the circumstances attaching. In the case of In re Konneker, 30 Ohio App., 502, 510, 165 N. E., 850, it is said: “The laws governing said courts were passed to conserve and protect the child life of our state.” And at page 549 of 24 Ohio Jurisprudence, it is stated: “Under it, the state, which through its appropriate organs is the guardian of the children within its borders, assumes the custody of the child, imposes wholesome restraints, and performs parental duties, at a time when the child is not entitled either by the laws of nature or of the state to absolute freedom, but is subjected to the restraint and custody of a natural or legally constituted guardian to whom it owes obedience and subjection.5 ’ ■ : What Rose Marie McTigue most needed, when accosted by the policewoman at midnight in Central Police Státion, while under the influence of intoxicating liquor, was benevolent and helpful attention and direction. She was a young and immature person, plainly lacking parental discipline and control. But in *354 stead of such consideration, she was used as the tool of police officers zealous to procure ironclad evidence of violation of law and who were wholly oblivious of the indignities heaped upon her person and the possible consequent jeopardy of her reputation as a proper and decent young girl. Charles Lamb, in his essay on Love, Death and Reputation, said this: “Reputation said: ‘If once we sever, Our chance of future meeting is but vain: Who parts from me, must look to part forever, For Reputation lost comes not again.’ ” Yet all that was expected of them, as conscientious guardians of the law, was to investigate thoroughly the statements and charges made by these girls, and to take action appropriate to the facts disclosed. That these officers acted in good faith there can be no doubt. In my opinion, however, they acted under a mistaken sense of duty and not only perpetrated an injustice upon Rose Marie McTigue but engaged in an undertaking inimical to public morals and public welfare, and, consequently, contrary to public policy. In Kintz v. Harriger, 99 Ohio St., 240, 124 N. E., 168, the Supreme Court of Ohio in an opinion concurred in by all the judges voting, one judge not participating, said on page 246: “In substance, it [public policy] may be generally said to be the community common sense and common conscience extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man’s plain, palpable duty to his fellow man, that has due regard to all circumstances of each particular situation. ’ ’ Again, the Supreme Court of Ohio stated in Pittsburgh, C., C. & St. L. Ry. Co. v. Kinney, 95 Ohio St., 64, 115 N. E., 505, in paragraph 2 of the syllabus: “2. The public welfare is safeguarded not only by constitutions, statutes and judicial decisions, but by sound and substantial public policies underlying all of them.” And at page 68: “When a course of conduct is cruel or shocking to the average man’s conception of justice, such course of conduct must be *355 held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be constitution, statute or decree of court. ’ ’ An undertaking contrary to public policy is illegal, and if engaged in for the purpose of gathering proof of a violation of law, testimony with respect to it at the trial of the person charged with the crime should be rejected on the court’s own motion; for to indulge it would make the court a party to the invalid transaction, which a court of law will never do. This is the course the Juvenile Court should have pursued under the facts and circumstances of this case since it is the court enjoined by law to carry out all provisions of law concerning children, and, when so acting it “represents the parens patriae power of the state.” (Supra.) The admission of this tainted evidence in the trial of the case, it seems to me, was reversible error per se. A court’s power to act sua sponte when circumstances warrant is illustrated in the following cases: (1) Pape v. Standard Oil Co., 5 C. C. (N. S.), 252, 17 C. D., 111 (syllabus): “A contract by the terms of which the parties undertake to deceive and defraud the public is not enforceable, and where the defendant does not plead the objection, a court will refuse upon its own motion to entertain an action founded thereon. ’ ’ (2) Strader v. United States, 72 F. (2d), 589 (headnote 5): “5. Proof of entrapment into committing crime requires termination of prosecution therefor, as conviction on proof so obtained is against public policy. ’ ’ And on page 591 the court said: “Such a question may be investigated on the court’s own motion at any stage of the proceedings because proof of its existence requires that the prosecution be ended, as it is against public policy to convict one upon proof obtained in that manner * # * The same principle of law applies to the facts in this case. I am aware of the case of State v. Lindway, 131 Ohio St., 166, 2 N. E. (2d), 490, and the many Court of Appeals cases following its mandate. They establish the proposition that evidence illegally obtained can be used in the prosecution of a crime if otherwise competent, relevant and material. I am also *356 acquainted with the very able dissertation on the subject by Professor John H. Wigmore found in the “Lawyers Treasury,” page 433, under the title “Using Evidence Obtained By Legal Search and Seizure.” The admissibility of evidence in all these cases was challenged on the ground that a personal right of the defendant had been violated in obtaining the evidence. No such consideration obtains with respect to the evidence here discussed. Rather, my concern is the right of police officers to use a minor child in their pursuit of detecting crime under circumstances that are shocking to the conscience of a self-respecting community and which disregard protections evolved for the child by law and custom. That is a totally different matter. Section 2151.40, Revised Code, styled “Co-operation required ’ ’ reads in part: “Every county, township, or municipal official or department, including the prosecuting attorney, shall render all assistance and co-operation within his jurisdictional power which may further the objects of Sections 2151.01 to 2151.54, inclusive, of the Revised Code. * * * The court may seek the co-operation of all societies or organizations having for their object the protection or aid of children.” Police officers of a city are agents of the state and employees of a department of a municipality. They are required by law to “further the objects” of the Juvenile Court Act by throwing a protective arm around every minor child coming un: der their jurisdiction. It seems clear to me, therefore, that the doctrine enunciated in the case of State v. Lindway, supra, has no application to this case. In the Lindway case, the evidence itself was in no way impugned. It was valid and in every way desirable as proof for the purposes to be subserved. Here, however, the evidence itself was invalid and its admissibility vitiated, it being created contrary to public policy. The Supreme Court in State v. Lindway, supra, recognized the overriding power of public policy when it is said, on page 181: “Of course, if the state of Ohio should ever deem it expedient as a matter of public policy to declare that evidence wrong *357 fully seized can not be used against a defendant in a criminal case on the basis that its admission encourages the lawless acts of over-zealous officers of the law in their methods of obtaining evidence, that would be an entirely different matter which is not our concern here. People v. Mayen [188 Cal., 237], supra.” (Emphasis supplied.) I hold, accordingly, that the evidence of a sale of liquor to the minor child involved in this case in the early morning of October 22, 1954, in the Black Angus Restaurant was inadmissible per se because of the means employed in obtaining the same and that, as a consequence, the trial court committed reversible error prejudicial to the rights of the defendant in considering such evidence on the charge of contributing to the delinquency of a minor brought against him. As a result thereof, the' degree of proof necessary to a conviction in a criminal case was lacking and the judgment of the trial court, as a matter of law, erroneous. Since another member of this court concurs in a judgment of reversal and for final judgment for the defendant, the judgment of the Juvenile Court therefore is reversed and we proceed to enter the judgment which the Juvenile Court should have rendered and discharge the defendant. Judgment reversed and final judgment for defendant. Judgment reversed. Hurd, J., concurs in the judgment. Skeel, J., dissents.