
    The State of Ohio, Appellant, v. Miclau, Jr., Appellee.
    (No. 35186
    Decided November 20, 1957.)
    
      
      Mr. John T. Corrigan, prosecuting attorney, and Mr. Dennis J. McCuire, for appellant.
    
      Messrs. Siegel & Siegel, for appellee.
   Taft, J.

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 ivhich 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 at page 369:

“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 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 waitress, and it would therefore not be described by the specific words of the affidavit. Hence, the question arises whether what Rose did, at the time that and immediately after she entered the Black Angus in the - company of the reporter and the policewoman and also in the custody of the plain-clothes men who entered ahead of her, could amount to any “delinquency” on the part of Rose. If it could not, there would obviously be no “delinquency” of Rose which anything that defendant was charged with doing could “aid, abet, induce, cause, encourage” or to which it could “contribute.”

We agree with the following statement by Judge Hurd in his concurring opinion in the Court of Appeals:

“* * * the minoi1, 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 asa 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.”

Certainly, it cannot be said that Rose in so acting was at the time when she entered the Black Angus at 1:30 a. m., to recognize the words of subdivision (D) of Section 2151.02, Revised Code, so deporting herself as to injure or endanger her morals or health or those of others. If she was, she was doing so, not because of anything that defendant did or failed to do, but because of what the police had asked her to do. As to whether she was, to recognize the words of subdivision (A) of Section 2151.02, Revised Code, violating any law of this state, it may be observed that she did not buy the drink but the drink was bought by the reporter for her. It may have been a violation of the law for the reporter, to use the words of Section 4301.69, Revised Code, to “buy intoxicating liquor for, or furnish it to” Rose, but the evidence indicates a sale to the reporter and a purchase by him, not a sale to Rose or a purchase by her. It was not contended that defendant was charged under Section 4301.69, Revised Code, with furnishing liquor to Rose.

Inasmuch as what we have said requires an affirmance of the judgment of the Court of Appeals which discharged defendant, we express no opinion with respect to the other questions of law considered in the two concurring and the dissenting opinions of the Court of Appeals.

Judgment affirmed.

Zimmerman, Stewart and Herbert, JJ., concur.

Weygandt, C. J., Bell and Matthias, JJ., dissent.

Bell, J.,

dissenting. I concur in paragraph one of the syllabus but dissent from paragraphs two and three thereof and from the judgment.

The majority opinion herein cites a paragraph of the opinion of this court in Fisher v. State, 84 Ohio St., 360, 95 N. E., 908, in an apparent attempt to bolster its position that in a prosecution such as this the state must establish beyond a reasonable doubt some delinquency which the defendant either “aided, abetted, induced, caused, encouraged” or to which he “contributed.”

Following the citation of such paragraph, the majority opinion states: “It was not sufficient to establish such delinquency of Rose to rely merely upon a judicial determination of her status as such * * *.” This would appear to dispose of the gratuitous statement of the writer of the opinion in the Fisher case that there must be a judicial determination of delinquency before there can be a conviction for aiding, abetting, inducing, causing, encouraging, or contributing to delinquency, and aligns tbe thinking of this court now with that of several Courts of Appeals which have considered the language of the above-mentioned paragraph, quoted in the majority opinion, to be dictum. Anss v. State, 16 Ohio App., 502; State v. Clark, 92 Ohio App., 382, 110 N. E. (2d), 433; State v. Griffin, 93 Ohio App., 299, 106 N. E. (2d), 668; Clements v. State, 3 Ohio Law Abs., 541; State v. Van Horn, 32 Ohio Law Abs., 406.

The ruling of the majority herein that there was not proof beyond a reasonable doubt of some delinquency is an obvious recognition that a 15-year-old girl does not commit an act of delinquency by entering a bar at 1:30 a. m. for the avowed purpose of getting a drink, if she can. It is at this point that I part company with the conclusions of the majority. To hold that such a child is not “so deporting herself as to injure or endanger her morals or health” so long as she is acting “under and in accordance with instructions of duly constituted law enforcement officers” appears to me to contradict the intent of the statute. It is true that the affidavit does not use those words of the statute which make it an offense to “act in a way tending to cause delinquency.” But it does use the words, “aid. abet, induce, cause, encourage, or contribute to.” Certainly the Legislature must have intended the word, “cause,” to have the same meaning in both sections of the statute. And it is difficult for me to ascribe to the words, “induce” and “cause,” anything but their ordinary meaning — “to bring on or bring about.”

The spirit and intent of the Legislature was, in my opinion, correctly interpreted by Judge Savord in his opinion in the Clark case, supra, when he said:

“It is the vicious effect which such acts may probably produce that is sought to be avoided. The prohibition seeks to prevent a probable delinquency rather than to await the undesirable result and then seek its cure. Surely the Legislature never intended that the offender should be punished only in the event that the potential effects of such acts had been fully accomplished.”

And the following language of Judge Hughes in the Clements case, supra, is also appropriate:

“In other words, the fact as to whether or not the minor was afterwards adjudged a delinquent was an immaterial fact in this case because if the defendant was found guilty of selling the intoxicating liquor which she had to be found guilty of before she could be convicted under the affidavit herein, she was also necessarily guilty of contributing to the delinquency of the minor child because the child thereby became an unlawful purchaser of intoxicating liquor which in itself made him a delinquent child.” (Emphasis added.)

The law-enforcement officers here may have gone beyond the limits of propriety and in so doing may have subjected themselves to discipline or prosecution. But, as stated by Judge Skeei, in his dissenting opinion:

“If action is taken against offending officers under such circumstances, it should be done directly and as provided by law and not attempt to collaterally punish them without charge or trial by giving immunity to one at least equally as guilty, if not guilty of more heinous conduct, at the expense of law enforcement. There is no such rule of immunity for law violations in this state.”

It is conceded that the child involved herein did not “buy a. drink,” if buying a drink means paying for it. But, as the majority opinion points out, defendant was not charged with selling liquor to a minor. He was charged with causing or inducing delinquency by serving her, or permitting her to be served, a drink. To permit him to escape responsibility for thus helping her along the path toward delinquency merely by accepting payment for the drink from someone else will not only open the door to an almost uncontrolled evasion of the laws intended to protect the juvenile but will make certain of the laws regulating the sale of intoxicants practically unenforceable.

Weygandt, C. J., and Matthias, J, concur in the foregoing dissenting opinion.  