State v. Miclau, 35186

• Decision Date: 20 November 1957
• Docket Number: No. 35186,35186
• Citation: 146 N.E.2d 293,167 Ohio St. 38
• Parties: , 4 O.O.2d 6 The STATE of Ohio, Appellant, v. MICLAU, Jr., Appellee.
• Court: Ohio Supreme Court

Page 38

167 Ohio St. 38

146 N.E.2d 293, 4 O.O.2d 6

The STATE of Ohio, Appellant, v. MICLAU, Jr., Appellee.

No. 35186.

Supreme Court of Ohio.

Nov. 20, 1957.

Syllabus by the Court

1. On a criminal charge, it is incumbent upon the state to establish by evidence beyond a reasonable doubt each essential element of the crime as charged and as specified in the statute.

2. Where it is charged only that defendant did aid, abet, induce, cause, encourage or contribute toward the delinquency of a minor child, it is essential, in order to sustain a conviction, to establish by evidence beyond a reasonable doubt that there was some delinquency of such child which defendant either aided, abetted, induced, caused or to which he contributed.

3. Ordinarily, a minor child does not commit any act of delinquency so long as he or she acts under and in accordance with instructions of duly constituted law enforcement officers who are acting within the course of their duties as such.

The proceedings against defendant-appellee, who is herein referred to as defendant, were instituted by the filing in the Juvenile Court of Cuyahoga County of an affidavit stating that the defendant 'did aid, abet, induce, cause, encourage and contribute toward the delinquency of' a certain 15-year-old minor, who is herein referred to as Rose, 'in this, to wit: that on or about' October 21, 1955, 'he * * * being an adult * * * and the manager of the Black Angus Restaurant and Lounge Bar * * * did unlawfully through his agent and employee * * * a [specifically named] waitress * * * sell intoxicating liquor to the said Rose.'

So far as they are or may be applicable in the instant case, the provisions of the Revised Code are as follows:

Section 2151.41. 'No person shall * * * aid, abet, induce, cause, encourage, or contribute to the * * * delinquency of a child * * * or act in a way tending to cause delinquency in such child. * * *' Section 2151.02. '* * * 'delinquent child' includes any child:

'(A) Who violates any law of this state * * *.

* * *

* * *

'(D) Who so deports himself as to injure or endanger the morals or health of himself or others.'

Section 4301.63. 'No minor under the age of twenty-one * * * shall purchase intoxicating liquor * * *.'

Section 4301.69. 'No person shall sell intoxicating liquor to a person under the age of twenty-one years * * * or buy intoxicating liquor for, or furnish it to, a minor * * *.'

Defendant entered a plea of 'not guilty' to the charge stated in the affidavit and waived any right to a trial by jury.

The evidence established that Rose and two other girls, aged 13 and 16, met near Playhouse Square in Cleveland sometime between 8:30 and 10 p. m. on October 20, 1955; that, while in that vicinity, that went to Clark's Restaurant where they each had a beer, to Stouffer's Restaurant where they each had a martini, to the Black Angus where they each had a 'gin and * * * either 7 Up of Squirt' and to Pierre's Restaurant and Bar where they were refused anything to drink except coffee; that the 16-year old was then sent home in a taxicab; and that Rose and the 13-year old then went to Central Police Station to visit an acquaintance who was a newspaper reporter.

The girls told him where they had had their drinks and, because they appeared to have been drinking, the police were called in to talk with them. The police told the girls that, if they would co-operate with the police to get the ones responsible for selling liquor to children, there would be no court action taken against the girls. The reporter, the two girls, a policewoman, two plain-clothes police and some state liquor agents then proceeded to Playhouse Square where they found Clark's and Stouffer's closed but the Black Angus apparently still open. It was then about 1:30 a.m. After discussing what should be done, the plain-clothes men entered the Black Angus with the understanding that Rose and the reporter would follow in about five to seven minutes and the policewoman would follow them, 'always keeping the girl and' the reporter 'in sight so that no harm would come to the girl while she was in our [i.e., the police's] care.'

When the reporter and Rose entered the Black Angus, they were told by defendant that it was closed, but, when the reporter stated that they 'had come into buy a drink,' defendant said that the restaurant was closed but that the bar was open and directed them to it. Thereupon, the reporter and Rose went into the bar and sat down in a booth. The waitress named in the affidavit asked them what they would like to drink. Rose ordered a gin and 7 Up and the reporter ordered a bourbon and gingerale. When the drinks were served, the reporter took a sip from his, but Rose did nothing with hers. The waitress brought the bill, the reporter paid it, and the policewoman and plain-clothes men then came up to the table and took Rose's drink. Rose had no money with her when she entered the Black Angus on this occasion.

After hearing the evidence, the Juvenile Court found the defendant guilty, ordered him to pay a fine and overruled his motion for a new trial.

On appeal to the Court of Appeals, that court by a 2 to 1 vote reversed the judgment of the Juvenile Court and discharged the defendant.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Dennis J. McGuire, for appellant.

Siegel & Siegel, for appellee.

TAFT, Judge.

At the outset, it should be noted that no contention is made that defendant was or could be (but consider subdivision (B)(2) of Section 2151.23, Revised Code) tried by the Juvenile Court for violating Section 4301.69, Revised Code, which prohibits the sale of intoxicating liquor to a minor or furnishing it to a minor. Instead, it is apparently conceded by the state that the only crime with which defendant was charged and for which he was tried was that specified in Section 2151.41, Revised Code.

Further, it should be noted that the affidavit does not charge that defendant did, to use some of the words of that statute, 'act in a way tending to cause delinquency.' The only charge is that defendant did, to use the words of the statute and the affidavit, 'aid, abet, induce, cause, encourage' or 'contribute' to or toward 'the * * * delinquency' of Rose.

This being a criminal charge, it was obviously incumbent upon the state to establish by evidence beyond a reasonable doubt each essential element of the crime as specified in the statute, including the element of some 'delinquency' which the defendant either 'aided, abetted, induced, caused, encouraged' or to which he 'contributed.'

In Fisher v. State, 84 Ohio St. 360, 95 N.E. 908, it was charged in an affidavit, in accordance with the words of the statute there involved, that the defendant 'did * * * aid, abet, induce, cause, encourage, and contribute to the delinquency of' a certain minor. After conviction defendant appealed and contended that the trial court had erred in admitting into evidence the record of conviction of the minor child. In disposing of this contention it is said in the opinion of the court 84 Ohio St. at page 369, 95 N.E. at page 911:

'The record of the conviction of the minor child upon a charge of delinquency was properly admitted in evidence as tending to show that she was a delinquent child, without proof of which the charge must fail, no matter how culpable his acts may be; for if the she had not become a delinquent then in the very nature of things he could not have contributed to her delinquency. It is the initial fact to be proven, and the fact to which the evidence offered in the case ought to be first directed, and upon failure of proof of this fact the defendant would have been entitled to his discharge.'

It was not sufficient to establish such delinquency of Rose to rely merely upon a judicial determination of her status as such, but, since defendant was not a party to the proceedings culminating in that determination, it was necessary to establish by evidence beyond a reasonable doubt, offered in the trial of defendant, the essential element of some 'delinquency' which defendant either 'aided, abetted, induced, caused, encouraged' or to which he 'contributed.'

Turning to the affidavit upon which defendant was tried, we find the specification of what he did as something which only took place when a sale of intoxicating liquor was claimed to have been made to Rose by a specified waitress. The only evidence in the record even suggesting any such sale (i. e., to use the words of the affidavit, 'through his agent and employee' therein named) is evidence with respect to the transaction which took place about 1:30 in the morning. Although there is evidence of some sale earlier in the day, there is no evidence that that sale was by the named...