City of Des Moines v. Rosenberg

Citation243 Iowa 262,51 N.W.2d 450
Decision Date05 February 1952
Docket NumberNo. 47923,47923
PartiesCITY OF DES MOINES v. ROSENBERG.
CourtUnited States State Supreme Court of Iowa

Raymond Rosenberg and Charles W. Bowers, of Des Moines, for appellant.

Lewis A. Royal and Doran L. Williams, City Prosecutors, of Des Moines, for appellee.

WENNERSTRUM, Justice.

An information was filed on October 22, 1950 in the Municipal Court of the City of Des Moines charging the defendant, Albert Rosenberg, with operating a disorderly place of business by reason of the illegal sale of intoxicating liquor at 216 Fourth Street in Des Moines and in violation of Section 106.4 of the 1942 Municipal Code of Des Moines. The defendant pleaded not guilty. Upon trial in that court the defendant was found guilty as charged and he was fined $100 and the costs taxed against him. Thereafter he appealed to the District Court of Polk County, Iowa. Sections 602.44, 762.43, 1950 Code, I.C.A. In that court a jury was waived and upon trial the defendant was found guilty as charged and fined $100 and the costs taxed against him. The judgment provided that in default of the payment of the fine that the defendant be committed to the Polk County jail as provided by statute, Section 420.36, 1950 Code, I.C.A. The defendant thereafter appealed to this court.

The testimony presented upon the trial shows that on October 22, 1950 two officers of the Des Moines police force, not in uniform, entered the premises previously mentioned between 12:20 and 12:25 A.M. This place of business, known as Carol's Snack Shop, faced the east on Fourth Street and had a restaurant in the front. Immediately behind the restaurant and to the west was a partition in which there was a door. This door had a glass panel a foot wide and ten inches high. This glass appeared to be a mirror from the restaurant side but one could see through it from the other side. Back of this partition was a room in which there were tables, chairs, a juke box, a small stage with a piano on it and on one side a bar. This back room is approximately 20 feet wide and 60 feet in depth from east to west. The testimony of the officers disclosed that they observed at that time 30 to 35 persons in the room, that they did not see anyone served food there but that many of the people who were in this back room were drinking from glasses. It is further shown that at the time the officers entered the restaurant they observed the appellant on the sidewalk immediately in front of this place of business, that when they entered he followed them in and that they later saw him in the back room walking toward the bar. When the officers were seated at a table a waitress came up to them and left four glasses on their table, two with water and two in which there was an amber colored fluid. They observed similarly filled glasses on other tables and in front of other customers. They testified that they were familiar with the taste of whiskey and that the colored liquid was an alcoholic beverage which they believed to be whiskey. One of the officers siphoned the amber liquid into a syringe and placed it and the glass in his pocket and substituted a glass he had brought with him. This glass and the liquid was introduced in evidence along with the stipulated testimony of a chemist to the effect that the sample examined by him contained an alcoholic content of 40.7 per cent by volume. Later on that same morning the officers purchased two more drinks and it was testified to by one of them that this later purchased liquid was also an alcoholic beverage and in his judgment was whiskey. About 1:00 A.M. of the morning in question a buzzer was sounded and the two waitresses shouted, 'Drink or dump.' At that time the appellant, Rosenberg, and one of the waitresses began clearing glasses from the tables in the west room, and about this same time two other officers entered the room and arrested about 68 persons then in the west room and later the appellant. The evidence further shows that during the time the two plain clothes officers were in this place of business the appellant was not observed to be seated at any of the tables but walked up and down the aisles between them and occasionally talked to the man in charge of the door and the waitresses serving the patrons. The appellant was later found in a small office in the northwest corner of the west room 45 minutes after the raid commenced. At that time this room was locked and the doorkeeper obtained a key and opened it for the officers. The appellant was in this room with the lights off.

It is the contention of the state that the appellant was shown to be connected with the operation of the premises by the following facts disclosed by the testimony: that on October 22, 1950 the appellant refused the police officers access to the cash register without a court order; that in September of that same year he had shown certain officers around the west room and commented concerning certain of the fixtures and equipment there; that on a certain in July, 1950 the appellant questioned the right of a police officer to enter the west room through the door from the restaurant; that on that occasion the officer said he might have to get a warrant and go through the door. This officer testified that the appellant then responded, 'We will see to that. After all, I have some rights. I have a right to protect my property.' On another occasion an officer accused the appellant of being a bootlegger and at that time he replied that the State of Iowa sold whiskey and he had just as much right to do it as they. On another date when there was a conversation relative to the sale of whiskey by the State of Iowa the appellant is quoted as stating: 'If that is the law that the State of Iowa can sell whiskey I can too.'

It is further shown that on occasions when a police officer entered the premises and endeavored to go into the back room he was unable to obtain entrance but that when the appellant knocked on the door, both the appellant and the officer were admitted. It is further shown that on the several occasions when one of the police officers had previously visited the business establishment in question, he usually found the appellant in or about the premises and these occasions would be during the daytime, early evenings and after midnight. The evidence presented also showed that the applications for meter service for the electrical and gas meters installed at 216 Fourth Street, Des Moines, Iowa were in the name of the appellant and that bills for these services were mailed to Al. Rosenberg at the address previously mentioned. It is also shown that the application for telephone service at Carol's Snack Shop was made by a person named Al. Rosenberg. The meter service records in the office of the Des Moines Water Works show that an application for water service at this place was made by an individual identifying himself as Al. Rosenberg and that statements were sent to that name at the address where the water was furnished.

It was the contention of the appellant in the district court and now in this court that the city ordinance upon which he was charged in the municipal court was in conflict with the state law pertaining to similar acts and was therefore invalid. It is claimed that Section 106.4 of the Municipal Code of the City of Des Moines, the section under which appellant was originally charged, covers the same type of violations as those enumerated in Section 123.60, 1950 Code of Iowa, I.C.A.

It is further contended that the evidence as presented was insufficient to sustain that the appellant was one of the operators of the premises known as Carol's Snack Shop and that the evidence did not sustain the verdict of guilty as charged in the information. A further claimed error on the part of the trial court was the admission in evidence of the records pertaining to the installation of electrical, gas, telephone and water service on the ground that there is no showing that the Al. Rosenberg shown by the several utility records as the individual who made oral application for them was the same individual charged in the action now before us for review.

Section 106.4 of the 1942 Municipal Code of the City of Des Moines is as follows:

'106.4 Disorderly House. No person, firm or corporation shall keep, maintain or operate or be concerned in keeping, maintaining or operating within the city of Des Moines any gambling house, bawdy house, disorderly house, house of ill fame, or roadhouse where lewdness is carried on, opium or hop-joint or place resorted to for the use of opium or hasheesh or places where intoxicating liquor is illegally kept, sold or otherwise dispensed; and no person shall frequent or be found in any such place or be employed therein.

'It shall be unlawful for any person knowing the character or reputation of any such place to transport others to or from the same.'

Sections 123.60 and 123.61 of the 1950 Code of Iowa, I.C.A., and which the appellant claims are in conflict with the city ordinance, are as follows:

'123.60 Nuisances. The building, erection, or place, or the ground itself, in or upon which the unlawful manufacture or sale, or keeping with intent to sell, use or give away, any alcoholic liquors is carried on or continued or exists, and any vehicle or other means of conveyance used in transporting such liquor in violation of this chapter, and the furniture, fixtures, vessels and contents, kept or used in connection therewith, are declared a nuisance and shall be abated as in this chapter provided.'

'123.61 Penalty. Whoever shall erect, establish, continue or use any building, erection or place for any of the purposes prohibited in section 123.60, is guilty of a nuisance and upon conviction shall be punished by a fine of not less than three hundred dollars, nor more than one thousand dollars, or imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment and shall stand committed until...

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7 cases
  • City of St. Paul v. Whidby
    • United States
    • Minnesota Supreme Court
    • December 29, 1972
    ...Court, 151 Colo. 358, 377 P.2d 738 (1963); Hanjaras v. City of Atlanta, 6 Ga.App. 575, 65 S.E. 356 (1909); City of Des Moines v. Rosenberg, 243 Iowa 262, 51 N.W.2d 450 (1952); City of Paducah v. Ragsdale, 122 Ky. 425, 92 S.W. 13 (1906); State v. Goldberg, 131 Me. 1, 158 A. 364 (1932); White......
  • State v. Olson, 49158
    • United States
    • Iowa Supreme Court
    • November 12, 1957
    ...609, 616-617, 16 N.W.2d 247, 251, and citations; State v. Marcus, 240 Iowa 116, 120, 34 N.W.2d 179, 181; City of Des Moines v. Rosenberg, 243 Iowa 262, 272, 51 N.W.2d 450, 455-456; 15 C.J.S. Conspiracy § 92 b, pages 1141-1144 ('The prosecutor has the right to show the whole history of the c......
  • Iowa City v. Nolan
    • United States
    • Iowa Supreme Court
    • February 18, 1976
    ...to constitute the crime with which he is charged.' This standard applies to both felonies and misdemeanors. City of Des Moines v. Rosenberg, 243 Iowa 262, 273, 51 N.W.2d 450, 456. In a series of United States Supreme Court cases, the most important of which is Morissette v. United States, 3......
  • City of Davenport v. Seymour
    • United States
    • Iowa Supreme Court
    • August 29, 2008
    ...not inconsistent with the reasonable doubt standard established in our case law for criminal violations. City of Des Moines v. Rosenberg, 243 Iowa 262, 272-73, 51 N.W.2d 450, 456 (1952). WIGGINS, Justice (dissenting). I dissent. I cannot agree with the majority's conclusion that the legisla......
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