State v. Rand, No. 46860.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BLISS
• Citation: 25 N.W.2d 800,238 Iowa 250
• Parties: STATE v. RAND.
• Decision Date: 14 March 1947
• Docket Number: No. 46860.

238 Iowa 250
25 N.W.2d 800

STATE
v.
RAND.

No. 46860.

Supreme Court of Iowa.

Jan. 14, 1947.
Rehearing Denied March 14, 1947.

Appeal from District Court, Polk County; Loy Ladd, Judge.

Appellant and Robert Knote were indicted and tried, jointly, for keeping a gambling house. The jury returned a verdict finding Knote not guilty. Judgment was entered against the appellant on a verdict of guilty, and he was sentenced to a term of one year in the county jail, in addition to a fine of $300. From this judgment he has appealed. The judgment is affirmed.

[25 N.W.2d 801]

C. I. McNutt, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen., and Vernon R. Seeburger, Co. Atty., and Ed S. Thayer, Asst. Co. Atty., both of Des Moines, for appellee.

BLISS, Justice.

On July 9, 1945, the grand jury of Polk County, Iowa, indicted the appellant and Knote for ‘keeping a gambling house as defined in sections 13198 and 13199 of the 1939 Code of Iowa,’ and charged that they ‘kept a building, house, and place, resorted to for the purpose of gambling and permitted and suffered persons in said building, house, and place, under their care and control, to play at cards, dice, and slot machines for money.’ The indictment was, in substance, in the words of said section 13198 (section 726.1, Code of 1946). Section 13199, Code, 1939 (section 726.2, Code, 1946), is as follows: “Keeper' defined. In a prosecution under section 13198, any person who has the charge of or attends to any such house, shop, or place is the keeper thereof.' To the indictment each defendant pleaded not guilty. The trial, begun on November 19, 1945, ended on December 5, 1945, with the verdicts above noted.

The gambling house, mentioned in the indictment, was known as the ‘Mainliner Night Club.’ It was located at 6001 Southwest 21st Street, Lot 1, Geil Place, in Bloomfield Township, Polk County, Iowa, outside the corporate limits of the city of Des Moines.

The record clearly sustains a finding that the place, above-described, was operated as a gambling house within the meaning of said Code section 13198. While the appellant's plea of not guilty is a denial of every essential element of the crime charged, he offered no evidence, and made no contention by argument, that the place was not resorted to for the purpose of public gambling. While other errors on the part of the trial court are assigned and vigorously argued, the appellant's chief ground for reversal is the claimed failure of the State to establish that the place was operated as a resort for gambling under his care, control, charge, or attendance. It is his contention that, while he may have been about the place and worked there and performed some services in its operation, his wife, Gladys

[25 N.W.2d 802]

Rand, was in fact the owner of the property and the operator of the ‘Mainliner Night Club.’

Since the facts largely control our decision, a summary thereof, pertaining to matters in controversy, seems fitting. The building which housed the business was a large hollow tile structure just east across the highway from the Des Moines Airport. Meals were served to the public in a large dining hall—approximately 70 by 100 feet. An orchestra and dancing space, and floor shows were provided for the patrons. There were four liquor bars in the place. Just north of the dining room was a taproom, about thirty feet square. Just east of the taproom and connected with it by a wide hall was a room fifty feet square.

The public records in the office of the Polk County Recorder show that Frank Cardamon conveyed this property to Gladys Rand, grantee, by deed dated December 18, 1943, and that Gladys Rand, by deed dated January 2, 1945, conveyed a one-half interest therein to Peter A. Rand, husband of the grantor. The land conveyed was Lot 1, in Geil Place, excepting 1015 feet thereof, in an official plat of Bloomfield Township. Certified copies of the deeds were introduced.

Proceedings of the Polk County Board of Supervisors, being a part of the public records in the County Auditor's office, show that on the application and bond of Gladys Rand, a Class B beer permit was issued on December 30, 1944 to ‘Gladys and Peter Rand’ at the ‘Mainliner’, covering a period to December 10, 1945. An exact duplicate of the permit issued to them was received in evidence. The permit was the only beer permit to them or either of them in existence in June, 1945. A beer permit was on the north wall of the taproom in the ‘Mainliner’ when officers searched the place on June 22, 1945.

The Bloomfield Township Assessor was a witness for the State. He made his assessment of the Mainliner Night Club property, both real and personal, on April 6, 1945. He talked with the appellant about the details of the assessment. He made his inquiries about the items of property of appellant, and the latter answered. He identified the slot machines and the dice tables, which were exhibits received in evidence at the appellant's trial, as being part of the personal property at the ‘Mainliner’ when he made the assessment. The dice tables were included in his assessment. They were in the northeast room, hereinabove referred to. The slot machines—‘he imagined there were a dozen or more’—were in ‘a sort of bar-room.’ That was the taproom mentioned above. The appellant told the assessor that he did not own the slot machines. But he did not state to whom they did belong. There is no other testimony respecting their ownership. The dice tables were assessed to the appellant with his assent. The legal description of the lot, which was assessed at $1,500, was Lot 1, Geil Place, in Bloomfield Township. The personal property was assessed at $3,500. A $10,000 assessment was placed on the ‘Mainliner’ building. The assessment roll was signed by appellant in the presence and view of the assessor. A carbon copy of the assessment roll was given to the appellant by the assessor. The original of the roll was received in evidence. There is no denial of any of this testimony of the assessor. The witness identified Exhibits ‘20’ and ‘21’—‘black jack’ tables—and Exhibits ‘1,’ ‘2,’ ‘3,’ ‘4,’ ‘5,’ ‘6,’ ‘7,’ ‘8’ and ‘9’—slot machines—as resembling tables and articles that he saw at the ‘Mainliner’ when he made the assessment. According to the testimony ‘black jack’ is a gambling game with ordinary playing cards.

On June 14, 1945, in the evening, Basil A. Grossnickle, a constable of Allen Township, Polk County, and Robert Barton a constable of Clay Township, in said county, went to the ‘Mainliner’ to make observations as to sales of whisky and gambling. The appellant was there at that time—about 9 o'clock P.M. He was standing behind a bar or counter with a cash register on it, talking to a man on the other side. They bought two drinks—a jigger of whisky and a bottle of beer—at the bar in the taproom. It was not the bar at which appellant was standing. They remained five or ten minutes. While they were there the slot machines were not in operation.

[25 N.W.2d 803]

Leonard Sims and Marvin C. Vanderlinden, members of the State Highway Patrol, testified that on September 14, 1943, about 8 o'clock P.M., a few miles south and west of Ames, Iowa, while in the performance of their duties, they stopped a small farm truck. The Clerk's Transcript shows—although this was not disclosed at the trial—that their attention was directed to the truck because its taillight was not operating. One Chiesa was driving the truck, and the appellant was seated with him. In the conversation, the appellant identified himself, by his motor vehicle driver's license, as Peter Alfonso Rand, and told the witnesses that he was on his way to the ‘Mainliner,’ of which he was the owner. The patrolmen then took the truck, appellant, and Chiesa to Ames to the home of John Nyberg. The latter was a witness for the State. On September 14, 1943 he was a special investigator of the Iowa Bureau of Criminal Investigation. He testified that he, the appellant, the patrolmen and Chiesa all went to the courthouse at Nevada, and that he talked to the appellant, and the latter told him he was Pete Rand, the owner of the ‘Mainliner,’ in Des Moines, and was on his way there.

On the evening of June 22, 1945, Grossnickle, the constable, on his sworn information, procured a searchwarrant for the ‘Mainliner’ from William Schweiker, Justice of the Peace for Four-Mile Township in Polk County. He then met with Barton, constable, and two other country constables, and four or five other deputized peace officers, and they proceeded in a body to the ‘Mainliner’. They arrived at about 9 o'clock P.M., entered at the south side of the building, checked their hats, crossed the dining room, where dinner was being served, a floor show was going on, the orchestra was playing, and all of them went in to the taproom in the northwest corner of the building. The officers seated themselves, and Grossnickle ordered at the bar a jigger of whisky for himself and beers for his associates. These were served and tasted for identification. Along the south and west wall of the taproom were slot machines—fourteen in all. There were five cent, ten cent, and twenty-five cent, slot machines. There were slot machines which were operated by, and paid off, in red and blue ration tokens. The twenty-five cent machines were operated by brass slugs. The machines were operated by placing a coin, token, or slug in a slot in the machine and pulling a lever. If the mechanism operated in a certain way, the machine would pay off to the player coins, tokens, or slugs in various amounts. Whether there was a pay off was a matter of chance, unaffected by any skill on the part of the player.

The officers played the machines a few times. Grossnickle put in $5 and received $1.50 in return. Others also, were playing the machines. At the end of the row of machines was a desk where the patrons could have money changed into various denominations by the attendant. The...