State v. Miclau

• Decision Date: 27 February 1957
• Citation: 140 N.E.2d 596,104 Ohio App. 347
• Parties: , 5 O.O.2d 36 STATE of Ohio, Plaintiff-Appellee, v. Theodore MICLAU, Jr., Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 347

104 Ohio App. 347

140 N.E.2d 596, 5 O.O.2d 36

STATE of Ohio, Plaintiff-Appellee, v. Theodore MICLAU, Jr., Defendant-Appellant.

Court of Appeals of Ohio, Cuyahoga County.

Feb. 27, 1957.

Siegel & Siegel, Ellis V. Rippner, Cleveland, for defendant-appellant.

John T. Corrigan, County Prosecutor, Michael Sweeney, Asst. County Prosecutor, Cleveland, for plaintiff-appellee.

KOVACHY, Judge.

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 a martini;

Black Angus, where each drank a gin with either Sever-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. Upon 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 cooperate, '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 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 Juvenile 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 be 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 R.C.L. 358, 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 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, 20 L.R.A.,N.S., 321; State v. Pigg, 78 Kan. 618, 97 P. 859, 19 L.R.A.,N.S., 848; State v. Anderson, 127 La. 1041, 54 So. 344; State v. Gilmore, 80 Vt. 514, 68 A. 658, 16 L.R.A., N.S., 786; State v. Constatine, 43 Wash. 102, 86 P. 384; State v. Nichols, 67 W.Va. 659, 69 S.E. 304, 33 L.R.A.,N.S., 419; State v. Kittelle, 110 N.C. 560, 110 S.E. 103, 15 L.R.A. 694; State v. Schull, 66 S.D. 102, 279 N.W. 241, 115 A.L.R. 1230; 30 Am.Jur. 414 and 424; State of Ohio v. Kominis, 73 Ohio App. 204, 55 N.E.2d 344; State of Ohio 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 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 aftifice, 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, on page 537, 130 N.E.2d 430, on page 431, it is written, quoting from 18 A.L.R. 146, and found in 12 O.J. 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 of Ohio, 26 Ohio App. 340, 159 N.E. 575; Sorgen v. State of Ohio, 36 Ohio App. 281, 172 N.E. 835; State of Ohio v. Henning, 83 Ohio App. 445, 78 N.E.2d...