I concur in the judgment of reversal and in the order discharging the defendant. In my opinion, the facts and circumstances disclosed by the evidence are such that the motion made for a discharge of the defendant at the close of the state's case should have been granted and failing that, the motion at the close of the entire case should have been granted on the ground that there is no evidence in the record to substantiate the charge that the defendant was guilty of the crime of contributing to the delinquency of a minor. *Page 358
Theodore Miclau, Jr., the defendant, was charged with contributing to the delinquency of one Rose Marie McTigue, a minor, "in this, to wit: that on or about the 21st day of October, 1955, in Cuyahoga County, Ohio, he, the said Ted Miclau, Jr., being an adult male person and the manager of the Black Angus Restaurant and Lounge Bar, located at 1326 Huron Road, Cleveland, Ohio, did unlawfully through his agent andemployee one Bernice Vassallo, a female adult person and awaitress at the aforesaid Black Angus Restaurant and Lounge Bar, sell intoxicating liquor to the said Rose Marie McTigue, a female child, 15 years of age." (Emphasis added.)
The evidence adduced by which it is intended to show the defendant acted unlawfully through his agent and employee relates only to an incident which occurred at or about 1:30 in the morning of October 22, 1955, when, according to the testimony of policewoman Rogers and police officer Faitz, they, the said officers, "set a trap," for the purpose of inducing a violation of the liquor laws of the state of Ohio.
To accomplish this purpose, they used the minor, Rose Marie McTigue, as a decoy and arranged to have her escorted by an adult married man nine years her senior in age. The escort, Gerald Rouby, a police reporter for a Cleveland newspaper, was at that time stationed on night duty at the Cleveland Central Police Station. According to the testimony of the minor, she had known the reporter, whom she called "Jerry," for a little over a year and had been in the habit of visiting with him occasionally at night at his office at the police station. She testified also that she knew the "police officers around there"; she said that when she went to the police station to visit with "Jerry" and the police officers, they would "talk about stories that were in the papers."
The evidence in the record shows that late on the night of October 21st, a plan was hurriedly evolved by the police officers with the co-operation of the newspaper reporter, whereby they would attempt to entrap someone into serving a drink of intoxicating liquor to the minor. The evidence shows also that the minor was completely under the control and direction of the police officers and that in all respects she obediently complied with their instructions at the time and place in question. The *Page 359 police procured the co-operation of the minor by making a promise to her that if she co-operated with them in their plan, she would not be prosecuted as a delinquent child, to use her words, she "would not be sent away," and that "they would help her."
In order to carry their plan into effect and to gain entrance to the restaurant, they arranged that the reporter should pose as the escort of the minor. The minor was dressed in a nylon black dress, wore high heels and nylon stockings and a hat with a veil on it. She had previously told the police that she and two other juveniles, similarly dressed, had succeeded earlier the same evening in procuring intoxicating liquor at two well known Cleveland restaurants located on Euclid Avenue, namely, Clark's and Stouffer's Restaurants and at the Black Angus, located at 1326 Huron Road, all of which occurred prior to the incident upon which this defendant was charged.
Policewoman Rogers testified that she "had intended to have both girls (Rose Marie McTigue and Carol Mitman), go in, but after leaving the police station, Carol became, well, almost hysterical and I knew that it was impossible to have taken her into the place." Policewoman Rogers testified in answer to a question, that she did not include the names of Clarks and Stouffers in her affidavit "because the places were closed. Had we gone back there another day, it would have been entrapment and we would not be a part to any entrapments." She was also asked "What would you call this?" and she answered "Setting a trap, but certainly not entrapment."
As to the promise made to the girls, including Rose Marie McTigue, she testified: "I made a promise to those girls that if they would co-operate with us to get the one responsible * * * there would be no court action taken against them." She was also asked: "Did you have the right to do that?" and she answered "Yes, I have the right," and further testified: "If a person co-operates, we have made those promises many, many times and it is done."
Andrew Faitz, another police officer who was a witness for the state, testified that promises were made to these girls, although he did not himself make them. He testified also, in answer to a question, that "they had set a trap" in this case. He *Page 360 testified further that Clark's, Stouffer's and the Black Angus Restaurants were "high calibre" restaurants and that he would place them all in the same classification.
The testimony of the defendant stands uncontradicted in the record that the waitress, Bernice Vassallo, had been specifically instructed by him that no intoxicating liquor should ever be sold or served to minors. Theodore Miclau, Sr., the father of the defendant and the owner of this and another restaurant where intoxicating liquors are sold, also testified that specific orders and instructions were given to all his employees that no intoxicating liquors were to be served or sold to minors or teen-agers. His testimony also stands uncontradicted.
It was stipulated by counsel that if the records of the Municipal Court would be introduced in evidence, such records would show that the waitress, Bernice Vassallo, had been arrested, tried and convicted in the Municipal Court of Cleveland on a charge of selling intoxicating liquor to the minor, Rose Marie McTigue.
In pursuance of the plan agreed upon, the detectives and the policewoman entered the Black Angus first. Then Jerry Rouby and Rose Marie McTigue entered and proceeded into the bar and sat in a booth about midway into the bar and ordered drinks which were paid for by Rouby. After the drinks were served, the officers immediately confiscated the drink served to Rose and placed it in a container for evidence. This was done in accordance with their plan. Thereafter this action was brought against the defendant, who was adjudged guilty of contributing to the delinquency of the minor. From this judgment, appeal was prosecuted to this court.
Section 2151.41, Revised Code (Section 1639-45, General Code), entitled, "Prohibition against abuse of or abetting delinquency of child," so far as it is pertinent, provides as follows:
"No person shall abuse a child or aid, abet, induce, cause,encourage, or contribute to the dependency, neglect, ordelinquency of a child or a ward of the Juvenile Court, or act in a way tending to cause delinquency in such child." (Emphasis added.)
Section 2151.41, Revised Code, contains three elements of "contributing." The first two relate to dependency and neglect *Page 361 which are not involved in this case. The third relates to delinquency which is here involved. The first two peculiarly involve the relationship of parent and child or those standing in "loco parentis." These elements are negative in character and connote a failure upon the part of parents to provide properly for their children. The third element of delinquency, so far as parents are concerned, can be either negative or positive in character. But as to third persons having no relationship to the child, all Ohio cases indicate some affirmative or positive action is necessary to support a charge of contributing to the delinquency of the child as defined in Section 2151.02, Revised Code.
The term delinquent child is defined by Section 2151.02, Revised Code, former Section 1639-2, General Code. So far as is pertinent, this section reads:
"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;
"* * *
"(D) Who so deports himself as to injure or endanger the morals or health of himself or others;
"* * *."
The crime of contributing to the delinquency of a child is a very serious offense which casts upon the state the burden of proving each essential allegation of the crime charged, by evidence beyond a reasonable doubt, the defendant at the outset of the trial, as in all criminal cases, being clothed with the presumption of innocence.
From the facts above stated, it is clear that the defendant did not personally either sell or serve the minor with intoxicating liquor, nor is it charged that he did. The charge of criminality is predicated solely upon the conduct of "an agent and employee." It is not charged that he had any knowledge of the incident when it occurred. There is a complete lack of any evidence showing or tending to show personal participation, culpability or complicity upon his part. Neither is there any evidence showing or tending to show any conspiracy upon his part, nor is it so charged in the affidavit. The evidence is directly to the contrary as all instructions and directions to the *Page 362 waitress involved, and to all other employees were that they were not to sell or serve minors or teen-agers intoxicating liquors.
From the evidence adduced upon trial, it must be concluded that the minor, when accompanied by the police reporter, and acting entirely in obedience to the instructions of the policewoman and other officers, and according to their plan, did not commit any act of delinquency. She did not consume any liquor purchased for her by the police reporter nor was it intended or planned that she should do so. The liquor served was immediately confiscated by the police officers and preserved as evidence, all in accordance with the preconceived plan. It follows as a necessary corollary that if the minor was not guilty of any delinquency in accompanying the officers and acting under and in accordance with their instructions, then the defendant could not have contributed to a delinquency which did not then and there take place. Support for this conclusion is found in many Ohio cases. For example, in State v. Hawkins, 56 W. L. B., 166, the second paragraph of the syllabus provides:
"2. Delinquency for which a minor under seventeen years may be prosecuted must be an existing condition, to which all persons aiding, abetting or contributing may be held amenable under General Code 1654, there being no limitation on account of age, sex or moral condition."
In that case, at page 167, Brister, J., instructed the jury, in part, as follows:
"Now, to contribute to anything, as I understand it, is to add to it; and there must be an existing thing, before you can contribute to it. That is, there must be already a delinquent state, or delinquent condition of the minor, to which the party charged adds and contributes more."
In State v. Clark, 92 Ohio App. 382, 110 N.E.2d 433 (motion to certify overruled June 18, 1952), where the defendant was directly involved with a minor on a charge of contributing to his delinquency, the Court of Appeals for Huron County said as appears by the second and fourth paragraphs of the syllabus:
"2. Insofar as Section 1639-45, General Code, condemns aiding, abetting, causing, encouraging, or contributing towards the delinquency of a child, it contemplates an existing delinquency *Page 363 and in such instance it is required that the complaint allege and the proof establish that the minor is or was a delinquent and that such delinquency was in some measure caused or contributed to by the accused."
"4. In reviewing a case on the weight of the evidence, the Court of Appeals must determine whether the evidence attains that high degree of probative force and certainty which the law demands to support a conviction."
In that case, the judgment of the Juvenile Court was reversed and the accused discharged.
For other authoritative Ohio Appellate Court decisions to the same effect, see:
Edmonds v. State, 30 Ohio App. 195, 164 N.E. 649; State v.Zaras, 81 Ohio App. 152, 78 N.E.2d 74; State v. Kiessling,93 Ohio App. 524, 114 N.E.2d 154.
Consequently, since there is no evidence that the minor committed an act of delinquency when she was acting completely in obedience to the directions and instructions of the police and under their exclusive direction and supervision, on the basis of logic and reason, sustained by authoritative Ohio cases, the defendant could not have been guilty of the crime charged and his motion at the close of the state's case should have been allowed and defendant discharged. This determination is, we think, decisive of this appeal.
However, because the assignments of error raise other issues which have been considered by the other members of the court, I consider it necessary to proceed to a consideration of another question which involves agency, that is the charge that the defendant was guilty of contributing to the delinquency of a minor in that he "did unlawfully, through his agent andemployee * * * a waitress, sell intoxicating liquor to a female child 15 years of age." (Emphasis added.)
It is held generally by Ohio text authorities and by Ohio cases that the relationship of principal and agent is not recognized in the commission of criminal offenses. In 2 Ohio Jurisprudence (2d), 244, Agency, Section 172, we find the following:
"Strictly speaking, the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. The law of agency as applied to civil cases has no application in *Page 364 criminal prosecutions. The criminal law does not recognize the doctrine of agency as a defense to a criminal charge, therefore, a principal is not liable for the criminal act of an agent unless he in some way participates in, countenances, or approves of what the agent does, or otherwise stated, unless he counsels, commands, aids, abets, or procures the commission of the act. And even though one who procures another to commit a crime, or participates with the agent in the commission thereof, is criminally liable, responsibility does not rest upon the principle of the law of agency; all who participate in crimes are either principals or accessories."
To the same effect, see 15 Ohio Jurisprudence (2d), 289, Criminal Law, Section 58, under the title of Principal and Agent.
The leading case in Ohio upon this subject is Anderson v.State, 22 Ohio St. 305, decided 1872, the first and second paragraphs of the syllabus of which provide as follows:
"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.
"2. But the directions to the agent, forbidding the sale, must be in good faith; for, however notorious or formal they may be, they can have no effect, if they are merely colorable. The fact of agency is to be determined by the real understanding between the principal and agent."
At the time the decision in the case of Anderson v. State was rendered, there was in effect a statute enacted by the Legislature, May 1, 1854 (52 Ohio Laws, 153), which provided as follows:
"That it shall be unlawful for any person or persons, byagent or otherwise, to sell intoxicating liquor to minors * * *." Subsequent to this decision, however, the statute was repealed (74 Ohio Laws, 300) and was re-enacted (74 Ohio Laws, 268) and the phrase, "by agent or otherwise," was omitted. The code provision in effect since 1953 is the present Section 4301.69, Revised Code. It reads as follows: *Page 365
"No person shall sell intoxicating liquor to a person under the age of twenty-one years or sell beer to a person under the age of eighteen, or buy intoxicating liquor for, or furnish it to, a minor, unless given by a physician in the regular line of his practice, or by a parent or legal guardian." (Emphasis added.)
From this, it will be observed that the guilt is personal rather than vicarious. Consequently, the statement of the Supreme Court in Anderson v. State, supra, at page 308, has much greater significance when read in the light of the present statute. At page 308, the court said:
"All who participate in the commission of such offense, are either principals or accessories. In offenses less than felony all are principals. But when it in fact appears that the personaccused in no way participated in the commission of the criminalact, he ought not, by construction, to be made punishable forit." (Emphasis added.)
In a careful examination of later cases, decided by the Supreme Court, we find that Anderson v. State, supra, has never been reversed or modified and we must assume that it is the law of the state until such time as the Supreme Court modifies or disapproves that case. Therefore, the dictum of the Supreme Court in that case is still binding upon this court. As late as July 5, 1950, in Miller v. Wick Bldg. Co., 154 Ohio St. 93,93 N.E.2d 467, Judge Taft, speaking for a unanimous court in a civil case, at page 100, twice cited Anderson v. State with approval.
In Volume 139 A. L. R., at page 317, the case of Anderson v.State, supra, is cited, together with many other cases, for the proposition that "it has been accepted as the rule that an employer is not criminally liable for an unlawful sale of intoxicating liquor by his employee, where such sale was made in violation of the instructions of the defendant."
In Mignery v. State, 10 Ohio App. 232, 29 C. C. (N.S.), 534, the court, at page 236, stated:
"Evidence was introduced on behalf of the defendant showing that he had on various occasions given his bartenders directions not to sell liquor to minors. If the prosecution were for unlawfully selling intoxicating liquor it would be competent for the defendant to prove that he had given in good faith directions *Page 366 to his bartenders forbidding sales to minors, as was held inAnderson v. State, 22 Ohio St. 305."
In Harris v. State, 1 Ohio App. 323, 20 C. C. (N.S.), 356, 24 C. D., 187, the Court of Appeals for Stark County held that an instruction to the jury was correct which stated in part as follows:
"I desire to say to you further, that if you find from the evidence in the case that the liquor was furnished without his authority and against his instructions given in good faith, that he could not be convicted of the offense with which he stands charged in the indictment."
In the instant case, there is no evidence showing or tending to show that the defendant participated in any way in the sale of the liquor to the minor. It was done out of his presence and without his knowledge. The evidence is uncontradicted that the sale by the agent was in violation of his instructions not to sell to minors and there was no evidence introduced by the state in its case in chief or rebuttal to show that the instructions of the proprietor and manager were colorable only or that the same were not given in good faith.
Therefore, if liquor was sold to the minor by an agent and employee of defendant without his knowledge, consent or participation, the defendant is not guilty of contributing to the delinquency of the minor in view of the provisions of the Ohio Code now in effect. Considering the unusual facts and circumstances of the instant case, a finding of guilty due to the acts of an agent and employee, mistaken or otherwise, contrary to instructions, should not be sustained by this court. As stated by the Supreme Court in Anderson v. State, supra, the accused, who did not participate in the commission of the criminal act, "ought not, by construction, to be made punishable for it."
Furthermore, it is highly important to distinguish between a violation of the laws respecting the regulation and sale of intoxicating liquor by permittees and the crime of contributing to the delinquency of a minor.
The operator or owner of an establishment where liquor is sold holds his license subject to compliance with the laws regulating the sale of intoxicating liquor under penalty of suspension or revocation of his license. This, however, would involve civil *Page 367 procedures under the provisions of the Liquor Control Act and is a far different proceeding from the criminal charge of contributing to the delinquency of a minor.
Even in this class of cases which is civil in character, involving proceedings before the Board of Liquor Control to revoke or suspend a liquor license, knowledge of the unlawful sale by an employee or agent of the permittee has been held to be a prerequisite to suspension or revocation of a permit. SeeSata v. Board of Liquor Control, 88 Ohio App. 88,94 N.E.2d 464. See, also, Knoff v. Board of Liquor Control, 61 Ohio Law Abs., 563, 105 N.E.2d 673, which is to the same effect.
Although those cases concern a review of the appropriateness of an order of the Board of Liquor Control suspending a liquor permit, the language of the court is significant for it stresses the importance of knowledge, actual or constructive, on the part of the party charged with the violation. Thus, if in a case where the issue is the suspension of a liquor permit for a limited time only, it is necessary to show that the party charged with the violation had knowledge of the same, how much more important is it in a criminal prosecution where the law is to be construed strictly in favor of the accused that it be incumbent upon the state to prove as an element of the crime charged that the party being tried had some knowledge thereof or participated therein? Certainly, except for a few well-delineated exceptions, knowledge thereof is a requisite of any criminal offense. I do not believe that the case under consideration can be or should be fitted into the narrow category of that exception.
An examination of the cases where the defendant has been held guilty of contributing to the delinquency of minors in violation of the Liquor Control Act relates to cases where the defendant was personally guilty of affirmative and positive action in the sale. In the instant case, the defendant is sought to be held for the mistake or misconduct of an employee in violation of his orders.
Thus in State v. Kominis, 73 Ohio App. 204,55 N.E.2d 344, the evidence shows that defendant was charged with aiding, abetting, and inducing the delinquency of a fifteen year old boy in that he furnished the child with intoxicating liquor "causing his intoxication." There the testimony in the record was to the *Page 368 effect that the defendant himself sold whiskey to the child and while there was some testimony countering the evidence, the trier of the facts found the defendant guilty. There was no question of sale by an agent in that case without the knowledge of the defendant.
In the case of State v. Davis, 95 Ohio App. 23,117 N.E.2d 55, a defendant was found guilty of contributing to the delinquency of a minor. The facts in that case show that the parent of the boy and the defendant, Davis, engaged in a conspiracy to carry on a lottery known as "numbers" or policy in violation of law. The holding of this court in that case was simply that ignorance of the minority of the child, on the part of the defendant, Davis, was not a defense. No analogy can be drawn between that case and the instant case.
The case of State v. Butler, 38 Ohio Law Abs., 211, decided by the Juvenile Court of Tuscarawas County, April 8, 1943, cited in the dissenting opinion, must also be distinguished from the instant case. In that case, a mother of a fifteen year old son left him in her place of business where intoxicating liquor was sold from 11:30 p. m. until 12:00 and instructed him to watch the bartender. In the short space of time that her son was in the bar, he served three glasses of whiskey, and two minors and one adult consumed the whiskey served by him. Here it is quite apparent that the relationship of mother and son had a distinct bearing upon the guilt of the mother who, by her affirmative act, placed the son in her bar room under circumstances which clearly showed that she was thereby contributing to his delinquency. However, even in that case, the court said at page 212:
"The defendant excuses herself in this action by stating that she always instructed her son never to wait on any customers. Such an instruction if met in good faith, with proper supervision of the son, would be a good defense to this action, because thefurnishing of liquor in violation of law by an agent without authority and against the instruction of the principal absolves the principal from wrongdoing." (Emphasis added.)
The circumstances of the instant case are so peculiar that citation of text authorities of other jurisdictions and decided cases of other jurisdictions are not helpful and certainly can form no predicate for an affirmation of guilt in this case. We *Page 369 are governed here entirely by Ohio law, both statutory and case law. Consequently, the affidavit upon which the accused was charged with crime through an agent is fatally defective. Furthermore, under the facts and circumstances shown in the evidence, the defendant cannot be held to be guilty of a crime because of the mistake or even misconduct of another concerning which he had no knowledge and in which he had no participation.
A reading of the record of this case from cover to cover fails to show any evidence that the defendant by agent or otherwise, aided, abetted, induced, caused, encouraged or contributed toward the delinquency of the minor as charged in the affidavit. For these reasons, the judgment of the trial court should be reversed and this court, proceeding to do what should have been done by the trial court, should order the defendant discharged.