State v. Perry, 48703

• Decision Date: 05 April 1955
• Docket Number: No. 48703,48703
• Citation: 246 Iowa 861,69 N.W.2d 412
• Parties: STATE of Iowa, Appellee, v. Rose Ellen PERRY, Appellant.
• Court: Iowa Supreme Court

Page 412

69 N.W.2d 412

246 Iowa 861

STATE of Iowa, Appellee, v. Rose Ellen PERRY, Appellant.

No. 48703.

Supreme Court of Iowa.

April 5, 1955.

Joseph Z. Marks, and Don Hise, Des Moines, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Clyde Herring, County Atty., Polk County; Theodore T. Duffield, Asst. County Atty., Polk County, Des Moines, for appellee.

LARSON, Justice.

The defendant was indicted by the Grand Jury of Polk County, Iowa, charged with the sale and possession of alcoholic liquor in violation of section 123.3, Code of Iowa 1950, I.C.A. She entered a plea of not guilty, was tried to a jury, and found guilty. A motion for a new trial was overruled, judgment was entered on the verdict and, there being two prior convictions under the provisions of Title VI of the Code, I.C.A., defendant was sentenced to imprisonment in the Women's Reformatory at Rockwell City for a term of three years. She appeals.

The facts are not greatly in dispute. In the early morning of May 10, 1953, two Des Moines police officers, Limke and Goulden, in civilian dress, went to the Hawkeye Club where they purchased memberships for $1.00 each. They brought no liquor with them, but ordered and received from defendant two drinks each, paying for them with marked money. They testified the defendant placed bottles on the back bar which she said were to be their bottles, and on one of them she put a label and the number 981, which corresponded with the number on one of the cards issued to the officers. Officer Limke preserved part of his last drink. A few minutes later, the city vice squad raided the club and seized this liquid, the back bar bottles, shot glasses, and other equipment including some brand bottles found in the back room. All were taken to the police station. The liquid later was delivered to the Iowa Lutheran Hospital biochemist for testing. This test showed the liquid to be 87.2 proof whiskey. The officers testified they paid 50cents for each drink served them by the defendant and that the drinks poured for them did not come from the Calvert's brand bottle which defendant had assigned to them, but from another bottle on the back bar bearing a Schenley label. Both officers further testified they were acquainted with the taste and smell of whiskey and could so identify it, and Officer Limke said he would say 'it was an alcohol.'

Defendant testified in her own behalf as follows:

'On the 10th of May, 1953, I was helping my husband at the bar. * * * I first saw them (the officers) when my husband called me to the door. He asked me to take their applications and register them. They made out formal applications for entry to the club and were issued cards. * * * After taking their applications I walked back to the bar. * * * they came out to the bar. They did not hand me any bottle. I did not put their name on any bottle. The bottle with the label attached was brought to the end of the bar and placed there by Mr. Perry. I do not know where he got that bottle * * *. I did not sell any whiskey to Mr. Limke or Mr. Goulden. I did pour a fluid from a bottle into a glass for Mr. Limke and Mr. Goulden. That bottle was Number 981. * * * I served them what we call chasers. It is either a 7-Up or a chaser, (of) coke or water. There is a charge for the chaser and I received money for that. I think both of them paid. I think I served two to one and three to the other and on each occasion I also served a chaser. On the 10th of May there were no bottles that may have contained intoxicating liquor at the Hawkeye Club which did not bear the name of one of the members. The members themselves brought these bottles to the club with their names on them.'

On cross-examination she denied that they changed the name or number tags placed on the bottles in such a manner that if the place were raided there would be labels on the bottles setting out on the back bar to coincide with the persons who were in the key club, and that such explanation accounted for the fact that the labels on the outside of the bottles were torn.

I. From her first two assigned errors we understand defendant contends the operation is within the exception to the general prohibition section of the Iowa Liquor Control Act, section 123.3, Code of Iowa 1950, I.C.A., in that the alleged Hawkeye Club was a private place rather than public. She complains because the trial court failed to instruct upon this, her theory of the case. She admits, however, that she did not offer or request any such instruction. We have often said the defendant who fails to request an instruction on his theory of defense is in no position to complain when the court does not instruct on such theory. State v. Anderson, 240 Iowa 1090, 1098, 38 N.W.2d 662; State v. Cox, 240 Iowa 248, 251, 34 N.W.2d 616, 619; State v. Schenk, 236 Iowa 178, 194, 195, 18 N.W.2d 169, 177, and citations; State v. Wilson, 235 Iowa 538, 545, 17 N.W.2d 138, 142, and citations; State v. Dale, 225 Iowa 1254, 1257, 282 N.W. 715. This is especially true when the theory of defenses is special. See State v. Christensen, 205 Iowa 849, 852, 216 N.W. 710, 711; State v. Kendall, 200 Iowa 483, 203 N.W. 806.

Defendant contends she was entitled to a specific instruction on certain specified evidence offered by her, viz. that if the jury found this a private club, and the liquor was the property of the members and was only served them by the defendant from their own liquor, and the charge made was only for the water, 7-Up or other 'chaser', and for service, then she was in possession under the exception of the Iowa Liquor Control Act. We shall not attempt to pass upon the propriety of such an instruction in view of the fact no request for such specific instruction on such alleged specific evidence was requested, and no error was committed by the court's failure to so instruct. In State v. Schenk, supra, we said at page 195 of 236 Iowa, at page 178 of 18 N.W.2d:

'It seems to us that the claim of defendant is that the trial court should have instructed as to certain specified evidence offered by him. We have held that it is not necessary in the absence of a special request for instructions relating to the bearing of specific evidence to instruct as to such matters of evidence.' Citing State v. Seevers, 108 Iowa 738, 78 N.W. 705.

While it is generally true an accused person is entitled to have his theory of the case explained to the jury and the law applicable thereto stated, unless the accused person requests instructions or in some manner calls to the trial court's attention his special theory, he cannot be heard to complain of the court's failure. We have also said we will not reverse for failure to give instructions not asked unless it clearly appears such omission deprived the accused of a fair trial on the merits and resulted in an obvious miscarriage of justice. State v. Wilson, 234 Iowa 60, 11 N.W.2d 737; State v. Critelli, 237 Iowa 1271, 24 N.W.2d 113; State v. Holoubek, Iowa, 66 N.W.2d 861; State v. Baker, Iowa, 66 N.W.2d 303, and cases cited therein.

The court's duty to instruct in such matters is confined to 'material questions of law in the case', whether requested or not, but this would apply only where relevant evidence was produced which would make apparent the materiality of the law claimed applicable thereo. State v. Cox, supra, 240 Iowa 248, 251, 34 N.W.2d 616, 619; State v. Helm, 97 Iowa 378, 385, 66 N.W. 751, 753. Even though defendant's contention under the exceptions of the Iowa Liquor Control Act was properly called to the trial court's attention, we do not believe it would have been sufficient to require such an instruction, as the evidence introduced does not bear out defendant's theory.

II. In this connection defendant complains of Instruction No. 4, which in part states:

'The possession of alcoholic liquor for the purpose of serving it to the public in a club, or the serving of the same or customers in a Club, is unlawful and is a violation of the Liquor Control Act and makes its possession under such circumstances unlawful.'

Defendant also points to parts of Instructions No. 6 and No. 7, which she claims are not the law applicable to a private club rendering certain services to its bona fide members. We are not impressed with the argument. It is fundamental in a criminal case that all the instructions should be read together, to determine their adequacy and correctness. State v. Warren, 242 Iowa 1176, 47 N.W.2d 221; State v. Katz, 241 Iowa 115, 40 N.W.2d 41; State v. Blackburn, 237 Iowa 1019, 22 N.W.2d 821; State v. Healy, 217 Iowa 1155, 251 N.W. 649; State v. Boever, 203 Iowa 86, 210 N.W. 571. The giving of instructions is governed largely by the evidence. State v. Johnson, 222 Iowa 1204, 271 N.W. 223. The defendant's possession of this liquor under the law was illegal unless she held it by virtue of the exceptions to the general prohibition, and the burden rested upon her. She admitted she knew the officers were strangers and had no bottle when they came in, and yet she served them alcoholic drinks. Furthermore, section 123.5, Code of Iowa 1950, subdivision 19, I.C.A., provides:

"Public place' includes any place, building or conveyance to which the public has or is permitted to have access and any place of public resort.'

Defendant contends there was no evidence this club was a public place. There was none that it was otherwise. It is an affront to a court's intelligence to contend this so-called Hawkeye Club was not a public place. To admit perfect strangers to a club room upon the payment of a one dollar fee and no other requirement, qualification or identification, clearly falls short of proof, even inferentially, that such a place was private. The designation of 'club' means little or nothing without substance. Here the evidence was clear that nothing was required for admission except the payment of one dollar, and a jury could not be permitted to...