The opinion
Skeel, P. J.,
dissenting. I am unable to concur in the reversal of the judgment in this case and particularly with the entry of final judgment. An extensive review of the evidence, as well as a research of the law, is necessary to a proper understanding of the ease.
On October 21, 1955, the defendant was the night manager of the “Black Angus” Restaurant and Lounge Bar where intoxicating liquors are sold, located on Huron Road in downtown Cleveland. It is charged that on that date the defendant contributed to the delinquency of Rose Marie McTigue, a minor of the age of fifteen years, in that he permitted intoxicating liquors to be sold to her by a waitress employed in said restaurant and bar, making the sale in the regular course of her employment.
The first witness testified to the charges filed against Rose Marie McTigue and the fact that by reason of the events of the evening of October 21 and the early morning of October 22,1955, she was found to be a delinquent child by the Juvenile Court of Cuyahoga County.
Rose Marie McTigue testified that at about 10 p. m. of October 21, she met her girl friend, Audrey Galomboski, age sixteen, in front of a movie house (the Allen Theatre) on Euclid Avenue. She was with Carol Mitman, age thirteen. The three girls went to Clark’s Restaurant, located in Playhouse Square
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where Audrey ordered a dinner and a beer and Rose and Carol had a beer. From Clarks, the three girls went to Stouffers where they ordered, and each was served a “martini.” From Stouffers, they went to the Black Angus where they ordered and each was served “gin and it was either seven-up or squirt.” From the Black Angus, they went to Pierre’s Restaurant and Bar in the vicinity, where they were refused intoxicating drinks but were offered black coffee. Audrey Galomboski was then put in a taxicab and sent home while Rose and Carol went to the Central Police Station to visit Jerry Rouby, a police station newspaper reporter. It was then about eleven thirty or fifteen minutes to twelve.
Carol Mitman testified that on the evening of October 21, 1955, she and Rose Marie McTigue went to China Lane to eat. They then met Audrey Galomboski in front of the Allen Theatre at about 8:30 p. m. They went to Clark’s Restaurant where “Audrey ate and we all had beer * * They then went to Stouffers and “we had a martini.” She testified she had never had a martini or any other intoxicating liquor before. They then went to the Black Angus. There they ordered “gin and squirt.” From there they went to Pierres. It was then about 10:30 p. m. In describing their conduct at Pierres, she testified: “We tried to get served and they said they won’t serve us anything but coffee. ” She testified also that when they left Pierres, they ‘ ‘ put Audrey in a cab. ’ ’
On cross-examination, Carol Mitman testified:
“Q. You said you never had any drinks before? A. Yes.
“Q. Never? A. Never.
“Q. How did you know the difference between a gin, how did you know to call these drinks the way you had, a gin and a squirt, tell the court how you arrived at these names? A. They were on a card.”
Carol testified that, after putting Audrey in a cab, she and Rose walked to the police station. There they talked to Jerry Rouby, a newspaper reporter with whom they were acquainted, then with a policewoman, Cecelia Rogers, and other police personnel.
The newspaper reporter testified that the girls got to his office in central police station about 11:30 p. m. and that he
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called the police to talk to the girls. At one point of his testimony (on cross-examination), in referring to what the girls had been doing at Clarks, Stouffers and the Black Angus, he testified:
“Q. What had they been doing there? A. I don’t know.
“Q. You don’t know what they were doing there but you went? A. I can presume but I don’t know.
“Q. You don’t know. What did you presume? A. I presume they had been drinking.
“Q. How did you know, did the girls appear that they had been drinking ? A. Yes. ”
There can be no question from the record that the police were called by this witness because of the girls’ story of the night’s adventures and because of their condition of being affected by drinking intoxicating liquor which, in fact, gave complete veracity to their story. The police also testified that the girls appeared to have been drinking and that Carol (later that night) needed to be attended by a doctor.
After the police (Cecelia L. Rogers and lieutenant Bayless), along with Rouby, talked with the girls and waited for members of the detective bureau (the vice squad and liquor men) to come, they took the girls, with the reporter, back to the Black Angus (the other restaurants the girls had visited being closed, it then being about 1:30 a. m.). The witness, Rouby, went into the Black Angus with Rose Marie MeTigue, his testimony on this subject being, in part, as follows:
“Q. You saw him [the defendant, Ted Miclau, Jr.] inside the door. What if anything was said by anybody at that time? A. Well he mentioned to us, he says I am sorry, but we are closed.
‘ ‘ Q. All right. A. And I answered that I am sorry, we had come in to buy a drink and he said well, the restaurant is closed, but the bar is open, go right ahead, and he pointed to the right. ’ ’
After they were seated in a booth near the bar, they ordered drinks (Rose ordering gin and seven-up) which were served by a waitress and paid for by Rouby. The police, who had entered the Black Angus before Rouby and Rose then confiscated the gin served under the foregoing circumstances.
The waitress, who served the drink, when asked on cross-
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examination about seeing Rose Marie McTigue in the restaurant earlier that evening said:
“Q. Did you see Rose McTigue in there earlier in the evening? A. I can’t say that I did, sir.
“Q. Do you now deny seeing her earlier that evening? A. Yes, sir.
“Q. You deny it? A. Yes, sir.
“Q. Did you say to the police officer, to detective Faitz, in response to his question that the reason I served her is that I saw her in here earlier in the evening? A. I thought I saw her earlier in the evening.
“Q. You said that? A. I thought.
“Q. Did you say to the policewoman Rogers when she talked to you immediately after this was confiscated? A. Yes.
“Q. That the reason that you served her was because you saw her in there earlier in the evening and you assumed that she was of the proper age? A. They were all there at the same time.
“Q. They were all there at the same time. By that you mean whom? A. Mrs. Rogers.
“Q. And you said— A. I thought I seen her earlier in the evening.
“Q. And did you say anything further to Mrs. Rogers? A. That I thought I seen her earlier in the evening.”
From the judgment of guilty of contributing to the delinquency of Rose Marie McTigue, a minor of fifteen years of age, by aiding and abetting and permitting the sale to her of intoxicating liquors, the defendant claims the following errors:
(1) The court below erred in failing to grant the defendant’s motion for discharge upon conclusion of the state case for lack of evidence in failing to establish and prove, as provided for by law, that the defendant contributed to the delinquency of one Rose Marie McTigue.
(2) The court erred in having failed to discharge the defendant upon the conclusion of all the evidence, in the failure of the state to establish and prove that the defendant did aid, abet, induce, cause, encourage and contribute toward the delinquency of one Rose Marie McTigue.
(3) The court erred in finding the defendant guilty in hold
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ing that as the manager in charge of said business he was guilty of contributing to the delinquency, when he had no means of knowing of any violation of any laws having been committed by one of the employees in charge of the lounge operated by his employer.
(4) The court erred in failing to find from the evidence adduced that said violation in the sale of liquor was a pre-arranged plan and a trap set for the purpose of causing the sale in violation of the law as made and provided; that said finding of the court below is manifestly against the weight of the evidence and contrary to the Constitution of the state of Ohio.
(5) The court erred in holding the manager in charge guilty of contributing to the delinquency of a minor when he had no knowledge, nor did he participate, nor did he personally sell any intoxicating liquor to a minor, and by reason thereof the court held that the master was liable for the criminal acts of his servant in contributing toward the delinquency of the minor.
(6) And for such other and numerous errors as appear from the record of said case.
The criminal liability of the manager of a lounge bar for the sale of intoxicating liquor to a minor in violation of Section 4301.69, Revised Code, is established when the sale is made even though it is made by an employee acting within the general scope of his employment but in direct violation of instructions given in good faith not to sell liquor to minors. Not only does the sale of liquor to a minor by an employee in violation of instructions make the owner criminally liable for violating the liquor law but also of contributing to the delinquency of the minor. A single act may commit more than one crime if the elements of each are encompassed by the act.
In the case of
State
v.
Butler,
38 Ohio Law Abs., 211 , the charge was that the defendant contributed to the delinquency of Dick Butler, a minor. The syllabus is as follows:
“1. The selling or handling of intoxicating liquor by a minor under eighteen years of age constitutes an act of delinquency under Section 1639-2, General Code.
“2. The owner of an establishment where intoxicating liquors are sold, who leaves his fifteen year old son in such establishment to ‘watch’ a volunteer bartender while the owner is
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absent on an errand, is guilty of acting in a way tending to cause delinquency of a minor under the provisions of Section 1639-45, General Code, if such minor sells intoxicating liquor to other minors during the owner’s absence.”
A number of cases are collected in the annotations following the case of
Hershorn
v.
People,
108 Colo., 43 , 113 P. (2d), 680 , reported in 139 A. L. R., 297, where the court held that the president and general manager of a corporation operating a night club who hires all its employees, directs its policies, supervises its business activities and is in complete control of the operation of the club, the business in effect being his own, is subject to criminal prosecution for the unlawful sale of liquor to a minor by a waiter in the club, even though he was not present and had no knowledge of such sale, where the statute prohibits sales to minors absolutely regardless of intent or scienter. The cases in the annotations begin at page 322.
Section 4301.69, Revised Code, provides:
“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. ’ ’
The Colorado Code uses almost identical language. It provides: “It shall be unlawful to sell # # spirituous liquors to
any person under the age of twenty-one years * *
I am in complete agreement with the majority of the court that the facts of this case do not bring the case within the definition of “entrapment.” (See Black’s Law Dictionary.)
Coming now to the question of whether or not the act of the officers in taking Rose Marie McTigue back to the Black Angus at 1:30 a. m. to see whether the employees would sell and the manager permit the sale of intoxicating liquors to the minor, as she had reported to them, is so completely against public policy as to prohibit them from testifying against a defendant as a result of carrying out such claimed conspiracy. I agree that a law-enforcing officer ought not to take part in a criminal conspiracy which might contribute to the delinquency of a minor child in seeking evidence in a criminal ease and such conduct cannot be too severely criticized. The courts should not tolerate
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the use of a minor to secure evidence in a case where the acts of the officers would be such as to contribute to the delinquency of a minor. But here, the police, having found two young girls, thirteen and fifteen years of age, in an intoxicated condition or under the influence of liquor, must have been motivated by an almost irrepressible desire to prosecute those guilty of creating or contributing to the condition in which they found these minors. It was unquestionably bad judgment to again expose Rose Marie McTigue to what would otherwise constitute an unlawful act for which she could be adjudged a delinquent after promises that if she would cooperate, she would not be punished. Yet, the acts of the officers could in no sense be called a conspiracy and their conduct should not give immunity to the defendant for his part in a violation of law which in part created the conditions which prompted and impelled the officers to act. Their acts (the officers’) could not be called a “trap.” If action is taken against offending officers under such circumstances, it should be done directly and as provided by law and not by attempting 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. The defense of public policy, if such there be, is not that the defendant is not guilty but rather that they, the law enforcing officers, did not obtain the evidence against him legally. The illegal act charged against the defendant, which in this case is clearly shown even before the law enforcing officers were involved in the case, would thus go unpunished and the protection of society lessened when all violations of law should be vigorously prosecuted.
Much of the history behind the rule against unlawful search and seizure and so-called self incrimination was developed at a time when the defendant was without reasonable means to defend himself or to present his evidence and so found it impossible to overcome the advantages of the sovereignty in criminal prosecutions. The reasons for these rules as then known have long since vanished but the rules remain, perhaps for justifiable reasons, but such reasons are not here present. Here the defendant has not been called upon to give evidence against him
*376
self, nor have the rules of search and seizure been violated. The public policy of Ohio, if it could be called a public policy rather than what it is, that is, a rule of evidence, is that all relevant evidence is admissible in a criminal case and the collateral question of whether it was legally or illegally obtained is not an issue in the case. This was the common law rule recognized and adopted by the courts of this state. It should also be noted that the defendant did not object to the evidence secured by the officers in taking the prosecuting witness a second time to defendant’s place of business.
In the case of
State
v.
Lindway,
131 Ohio St., 166 , 2 N. E. (2d), 490, the court said in paragraphs three, four, five and six of the syllabus:
“3. An officer of the law who makes search and seizure in a dwelling or other premises, without a warrant or with an illegal warrant, in contravention of Section 14, Article I, of the Constitution of Ohio, is a trespasser, and amenable to an action for such trespass.
“4. In a criminal case, evidence obtained by an unlawful search is not thereby rendered inadmissible, and, if otherwise competent and pertinent to the main issue, will be received against an accused.
“5.
An application or motion to suppress or exclude such evidence made before trial or during trial is properly denied. The court need not concern itself with the collateral issue of how the evidence was procured. # *
“6. The immunities from compulsory self-incrimination and unreasonable searches and seizures given by Sections 10 and 14, respectively, Article I, of the Constitution of Ohio, are not violated by the denial of such application or motion, and the admission of such evidence.”
This case has been cited and followed in the cases listed below:
City of Columbus
v.
Riggle,
68 Ohio App., 15 , 38 N. E. (2d), 323;
State
v.
Williams,
69 Ohio App., 361 , 41 N. E. (2d), 717;
City of Columbus
v.
Smith,
78 Ohio App., 66 , 65 N. E. (2d), 716;
City of Columbus
v.
Meadley,
78 Ohio App., 490 , 65 N. E. (2d), 719;
State
v.
Miller,
85 Ohio App., 376 , 88 N. E. (2d), 614;
City of Xenia
v.
Smith,
34 Ohio Law Abs., 620 , 39 N. E. (2d), 191;
*377
City of Columbus
v.
Treadwell,
46 Ohio Law Abs., 367 , 65 N. E. (2d), 720;
State
v.
Kendrick,
52 Ohio Law Abs., 383 , 83 N. E. (2d), 119;
City of Akron
v.
Stouffis,
96 Ohio App., 105 , 121 N. E. (2d), 307;
City of Columbus
v.
Gray,
98 Ohio App., 464 , 129 N. E. (2d), 857;
State
v.
Roche,
72 Ohio Law Abs., 462 , 135 N. E. (2d), 789.
The admissibility of evidence obtained by unlawful search and seizure is also considered in annotations found in 134 A. L. R., 819, 150 A. L. R., 566, 50 A. L. R. (2d), 533. It should be noted that the
Lindway case
and the eases that follow the law there decided are cited here only to show that evidence obtained by unlawful means is not for that reason to be excluded in a criminal case in Ohio. Here the constitutional provision for search and seizure was not violated. The defendant’s constitutional rights were not infringed.
In the case of
Horton
v.
State,
85 Ohio St., 13 , 96 N. E., 797 , the defendant was indicted for obtaining money under false pretenses. The prosecuting witness had paid certain money to the defendant upon his, the defendant’s, promise to deliver to the prosecuting witness certain counterfeit money which he, the defendant, did not have or intend to sell and deliver when he procured the prosecuting witness’s money. While the court held the indictment was not sufficiently clear and dismissed the charge on that ground, yet on the defendant’s claim that such a claim could not be prosecuted where the prosecuting witness was attempting to act in violation of law, the court said:
“2. It is no defense to an indictment for obtaining money by false pretenses that the transaction in which the money was so obtained was unlawful.”
In the case of
State
v.
Mellenberger,
163 Ore., 233 , 95 P. (2d), 709 , 128 A. L. R., 1506, the court overruled
State
v.
Alexander,
76 Ore., 329 , 148 P., 1136 , which had dismissed a defendant on the ground that he was
particeps criminis
in the criminal act charged. In the
Mellenberger case,
the defendant changed a punchboard number (a gambling device) to a winning number and demanded and received $10. The decision in paragraphs four and nine of the headnotes held that:
“4. Accused could not escape punishment for obtaining punchboard prize money by falsely pretending to hold winning
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number and presenting to punchboard operator an altered non-winning number because of fact that operation of punchboard constituted violation of state law, since doctrine of particeps criminis was inapplicable.”
“9. On appeal from conviction for obtaining punchboard prize money by falsely pretending to hold winning number and presenting to punchboard operator an altered nonwinning number, the doctrine of ‘stare decisis’ did not preclude Supreme Court from overruling that part of a single prior decision which endeavored to infuse doctrine of particeps criminis into criminal law of state, where the prior decision was not preceded by oral argument, resort to doctrine of particeps criminis was unnecessary in the case, and the decision was not in agreement with spirit of times or judgment of subsequent tribunals.”
The use of evidence obtained by illegal search and seizure and other evidence illegally obtained was considered in an article written by Dr. John A. Wigmore, renowned authority, author, and teacher, on the subject of evidence which was published in 8 A. B. A. J., 479 (Aug. 1922). His conclusion is that the only question that can be raised as to such evidence is its relevance, not the way in which it was discovered. He said at the beginning of the article that:
“Necessity does not require, and the spirit of our law does forbid, the attempt to do justice incidentally and to enforce penalties by indirect methods. An employer may perhaps suitably interrupt the course of his business to deliver a homily to his office boy on the evils of gambling or the rewards of industry. But a judge does not hold court in a streetcar to do summary justice upon a fellow passenger who fraudulently evades payment of his fare; and, upon the same principle, he does not attempt, in the course of a specific litigation, to investigate and punish all offenses which incidentally cross the path of that litigation. Such a practice might be consistent with the primitive system of justice under an Arabian sheikh; but it does not comport with our own system of law. It offends, in the first place, by trying a violation of law without that due complaint and process which are indispensable for its correct investigation. It offends, in the next place, by interrupting, delaying, and confusing the investigation in hand, for the sake of a matter which is
*379
not a part of it. It offends, further, in that it does this unnecessarily and gratuitously; for since the persons injured by the supposed offense have not chosen to seek redress or punishment directly and immediately, at the right time and by the proper process, there is clearly no call to attend to their complaints in this indirect and tardy manner. The judicial rules of evidence were never meant to be an indirect process of punishment. It is not only anomalous to distort them to that end, but it is improper (in the absence of express statute) to enlarge the fixed penalty of the law, that of fine or imprisonment, by adding to it the forfeiture of some civil right through loss of the means of proving it. The illegality is by no means condoned, it is merely ignored.
“For these reasons, it has long been established that the
admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence.
“1841, Wilde, J., in
Com.
v.
Dana,
2 Metc., 329 : * Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done. But this is no good reason for excluding the papers seized, as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence the court can take no notice how they were obtained,—whether lawfully or unlawfully,—nor would they form a collateral issue to determine that question. ’
“1875, Schofield, J., in
Stevison
v.
Earnest,
80 Ill., 513 , 518: ‘It is contemplated, and such ought ever to be the fact, that the records of courts remain permanently in the places assigned by the law for their custody. It does not logically follow, however, that the records, being obtained, cannot be used as instruments of evidence; for the mere fact of [illegally] obtaining them does not change that which is written in them
*
* *. Suppose the presence of a witness to have been procured by fraud or violence, while the party thus procuring the attendance of the witness would be liable to severe punishment, surely that could
*380
not be urged against tbe competency of the witness. If he could not, why shall a record, although illegally taken from its proper place of custody and brought before the court, but otherwise free from suspicion, be held incompetent?”
The federal doctrine, as determined by
Boyd
v.
United States
(1885), 116 U. S., 616 , 29 L. Ed., 746 , 6 S. Ct., 524 , and
Weeks
v.
United States
(1914), 232 U. S., 383 , 58 L. Ed., 652 , 34 S. Ct., 341 , is illogical and leads to impractical results and has been repudiated by a majority of the states. But here, in addition to seeking support from the repudiated doctrines of illegal search and seizure and
particeps criminis,
as tactical defenses in criminal eases, the third, equally illogical tactical defense of “public policy” is being added when the constitutional rights of the defendant are in no way involved. This new philosophy, besides having no guidepost to limit its application, would bring about illogical results as do the others.
If a law-enforcing officer goes beyond the bounds of propriety in the exercise of his duties, he may be subject to discipline or prosecution, which ever the circumstances require, but his acts in developing competent evidence of the criminal conduct of another should not be held inadmissible and the defendant set free because of the manner in which the evidence, which shows him clearly guilty.of a crime, was obtained. There is no legal justification for such result.
The court should not put the trial of a criminal case in a straight jacket at the expense of protection to minors against acts tending to establish delinquency induced or permitted by others. The holder of a liquor license is granted a privilege to engage in the sale of intoxicating beverages. It is his obligation in the management of such privilege to see to it that minors are not served intoxicating liquors in his establishment. If he accepts the privilege, he must also accept the full responsibility obtaining thereto. Here the facts which were presented by the evidence of the minors, and are not contradicted, are that the three minors were served intoxicating liquor in defendant’s place of business before the return of Miss McTigue with the officers about which the majority of the court is so much concerned. The credibility of their testimony on this point is supported by the defendant’s waitress who excused the “sale” on
*381
the second occasion because she thought she remembered seeing them (the three minors) in the place earlier that evening. This testimony, together with the fact that the two girls who went to the police station were then noticably under the influence of liquor, is sufficient evidence to support the judgment here appealed without considering what happened under the direction of the officers.
In the case of
State
v.
Sobelman,
199 Minn., 232 , 271 N. W., 484 , the owner of a place licensed to sell liquor was held guilty of contributing to the delinquency of a minor for permitting her (a girl sixteen years of age) to be in his place of business even though he was absent and did not know his servants permitted such conduct.
In the case of
State
v.
Clark,
92 Ohio App., 382 , 110 N. E. (2d), 433, it is said in the third paragraph of the syllabus:
“3. The portion of Section 163.9-45, General Code, having to do with acts which in a way tend to cause delinquency presents a different concept. It does not follow that the minor must, as a result of such acts, become a delinquent. If the acts within themselves possess the nature and character as to probably lead the minor into the status of a delinquent, such acts may be considered as tending to cause delinquency.”
From the foregoing authority, the contention that Rose Marie McTigue did not drink the liquor which was served by the defendant’s servant on her second trip to the “Black Angus” would not relieve the defendant of committing an act tending to contribute to her delinquency. She was in his lounge bar where the defendant directed her to go. The fact that she did not drink the liquor which his establishment furnished for her was not prevented by any act on his part. Nor can the officers be charged with setting a trap by reason of the manner in which this minor was dressed. No change in her appearance was made between her first and second visit to the Black Angus.
From a complete reading of the record in this case, it is clear that substantial justice has been done and the judgment should be affirmed.