State v. Rosenberg, No. 46963.

CourtIowa Supreme Court
Writing for the CourtGARFIELD
Citation27 N.W.2d 904,238 Iowa 621
Decision Date17 June 1947
Docket NumberNo. 46963.
PartiesSTATE v. ROSENBERG et al.

238 Iowa 621
27 N.W.2d 904

STATE
v.
ROSENBERG et al.

No. 46963.

Supreme Court of Iowa.

June 17, 1947.


Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

Defendants Rosenberg and Lewis were convicted of illegal possession of alcoholic liquor in violation of section 123.3, Code 1946, and have appealed.

Reversed on appeal of Rosenberg; modified, affirmed and remanded on appeal of Lewis.

[27 N.W.2d 905]

Walter F. Maley and C. S. Missildine, both of Des Moines, for appellants.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen., and Carroll O. Switzer, Co. Atty., and Ed S. Thayer, Asst. Co. Atty., both of Des Moines, for appellee.


GARFIELD, Justice.

Defendants Al Rosenberg and Jack Lewis, together with Rea Janecek, were charged by county attorney's information with illegal possession of alcoholic liquor in violation of section 1921.003, Code 1939 (123.3, Code 1946), of the Iowa Liquor Control Act. Rea Janecek was never arrested or tried for the offense. A jury found Rosenberg and Lewis guilty. Each was ordered to pay a fine of $1,000 and costs and in default of payment of the fine imprisoned in the county jail for ten months. Both have appealed.

We may say at the outset the judgment of imprisonment should not have exceeded one day for every $3 1/3 of the fine or a total of 300 days, rather than ten months. Section 789.17, Code 1946 (13964, Code 1939); State v. Tucker, Iowa, 24 N.W.2d 460. With this modification the judgment against Lewis is affirmed. The district court is directed to modify the judgment accordingly. See State v. Tucker, supra.

The prosecution is based on a raid under a search warrant by deputy sheriffs on November 16, 1945, of a tavern at 216 4th Street in Des Moines known as Mommie's Place. About 40 bottles of whiskey and gin were found. Lewis was the bartender on duty who told one of the officers he was in charge of the place. He was ‘the manager at the time.’ The state contends Rosenberg was lessee of the premises and proprietor of the tavern. Rosenberg maintains, however, that Mrs. Rea Janecek, jointly charged with him and Lewis, operated the tavern at the time in question and he had no connection with the liquor. Rosenberg's principal complaints here are based on the exclusion of evidence offered by him tending to prove Mrs. Janecek operated the place. It is apparent the defense urged by Rosenberg is not available to Lewis since the claim Mrs. Janecek was the proprietor is not inconsistent with Lewis' guilt. See authorities infra.

The building occupied by the tavern, owned by the Chas. Weitz estate, was rented for five years from August 1, 1938, to Rosenberg and one Forstenfeld. When the lease expired the owner's representative told Rosenberg he could have the building as a tenant from month to month at $150

[27 N.W.2d 906]

a month. The rent was paid each month at a bank presumably by Rosenberg or some one for him and credited to the owner's account.

A deputy assessor testified for the state that on February 12, 1945, he assessed the personal property at 216 4th Street to Esther and Al Rosenberg in whose names it had always been assessed. Esther is Al's wife. Al signed and swore to the assessment roll in the names of his wife and him and the state offered it in evidence. There is no evidence Rosenberg was seen at the tavern after the written lease expired in July, 1943, except at the time the assessment roll was signed.

Isadore Robinson, an attorney in Des Moines for 26 years, testified that in June, 1943, he prepared a written agreement which Esther Rosenberg and Rea Janecek signed. This writing provides that ‘from and after this date’ Mrs. Janecek ‘shall operate the business known as Mommie's Place, 216 Fourth Street, Des Moines' on stated terms; shall obtain a class B permit as of July 1, 1943, and renew it while she operates the business; pay all expenses, including rent and wages; have the use of all fixtures. Defendants' offer of this writing (exhibit 6) was excluded on the state's objection it was hearsay, not made by either defendant nor by any witness whom the state could cross-examine. Robinson's testimony was later stricken on the state's motion for similar reasons.

The secretary of the state permit board identified a state beer permit which expired July 1, 1946, issued July 9, 1945, to ‘Mrs. Rea Janecek d/b/a Mommie's Place, 216 4th St., Des Moines.’ Defendants' offer of this permit (exhibit 3) was excluded on the state's objection it was collateral, self-serving and hearsay. A class B beer permit issued by the city of Des Moines to Mrs. Janecek for Mommie's Place for the period from July 2, 1945, to July 1, 1946, was identified by the city clerk. This permit (exhibit 4) was excluded on the state's objection ‘there is nothing in the record to show it is competent, relevant or material’. Exhibit 5 is a cigarette permit also issued by the city of Des Moines to Mrs. Janecek for Mommie's Place for the period from July 1, 1945, to June 30, 1946. Exhibit 7 is a $500 bond of Mrs. Janecek and a corporate surety filed with the city before the issuance of the class B beer permit, exhibit 4, together with the application for this permit. The application is sworn to by Mrs. Janecek and recites she is the owner and operator of the business. Exhibit 8 is a $500 bond of Mrs. Janecek and the same corporate surety also filed with the city before the issuance of the cigarette permit. The recitals of this application are similar to those of exhibit 7. Exhibit 9 is a verified statement by Esther Rosenberg dated June 2, 1944, filed with the county recorder of the county in which Des Moines is located, stating she has no further interest in the business conducted under the trade name of Mommie's Place. Exhibit 10 is a verified statement by Mrs. Janecek dated June 2, 1944, also filed with the county recorder, stating she is the owner of the business. Defendants contend exhibits 9 and 10 were filed pursuant to sections 9866.1, 9866.2, Code 1939 (547.1, 547.2, Code 1946).

Exhibits 5, 7 and 8 (the cigarette permit and the bonds and applications for the class B permit and for the cigarette permit) were all excluded as incompetent, irrelevant and immaterial. Exhibits 9 and 10 (the trade name affidavits) were excluded as hearsay and because the persons named in the exhibits were not produced for cross-examination by the state. The testimony of the secretary of the state permit board, the city clerk and the deputy county recorder by which the above exhibits, 3 to 5 and 7 to 10 were identified, was all stricken on the state's motion ‘for the reasons urged,’ presumably in the objections to the exhibits. The court also excluded testimony of Des Moines police officers and a cook at the tavern that during the fall of 1945 they saw permits similar to exhibits 3, 4 and 5 on...

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8 practice notes
  • State v. Stump, No. 50605
    • United States
    • United States State Supreme Court of Iowa
    • 15 Enero 1963
    ...be confined to substantive facts and create more than a mere suspicion that such other person committed the offense. State v. Rosenberg, 238 Iowa 621, 625, 27 N.W.2d 904. If the credibility of Leanna Skultety was to be weakened by evidence of her pregnancy that purpose had been accomplished......
  • Waterloo Sav. Bank v. Waterloo, Cedar Falls & Northern R. R., No. 48306
    • United States
    • United States State Supreme Court of Iowa
    • 20 Octubre 1953
    ...Egg Co., 240 Iowa 199, 210, 35 N.W.2d 875; Patterson v. Wuestenberg,[244 Iowa 1377] 239 Iowa 658, 663, 32 N.W.2d 209; State v. Rosenberg, 238 Iowa 621, 630, 27 N.W.2d We find no error prejudicial to defendant. Affirmed. All Justices concur. ...
  • Com. v. Graziano
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 9 Julio 1975
    ...v. Murphy, 282 Mass. at 597, 600, 185 N.E. 486 (1933); Holt v. United States, 342 F.2d 163, 165--167 (5th Cir. 1965); State v. Rosenberg, 238 Iowa 621, 625--627 (1947); State v. Smith, 377 S.W.2d 241, 245--246 Second, reasonable cross-examination of a witness for the purpose of showing bias......
  • State v. Hill, No. 47105.
    • United States
    • United States State Supreme Court of Iowa
    • 4 Mayo 1948
    ...of the evidence. In this connection we must view the testimony in the light most favorable to the prosecution. State v. Rosenberg, 238 Iowa 621, 27 N.W.2d 904, 908, 909. It is necessary to refer only to the evidence which tends to support the verdict. State v. Kneedy, 232 Iowa 21, 27, 3 N.W......
  • Request a trial to view additional results
8 cases
  • State v. Stump, No. 50605
    • United States
    • United States State Supreme Court of Iowa
    • 15 Enero 1963
    ...be confined to substantive facts and create more than a mere suspicion that such other person committed the offense. State v. Rosenberg, 238 Iowa 621, 625, 27 N.W.2d 904. If the credibility of Leanna Skultety was to be weakened by evidence of her pregnancy that purpose had been accomplished......
  • Waterloo Sav. Bank v. Waterloo, Cedar Falls & Northern R. R., No. 48306
    • United States
    • United States State Supreme Court of Iowa
    • 20 Octubre 1953
    ...Egg Co., 240 Iowa 199, 210, 35 N.W.2d 875; Patterson v. Wuestenberg,[244 Iowa 1377] 239 Iowa 658, 663, 32 N.W.2d 209; State v. Rosenberg, 238 Iowa 621, 630, 27 N.W.2d We find no error prejudicial to defendant. Affirmed. All Justices concur. ...
  • Com. v. Graziano
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 9 Julio 1975
    ...v. Murphy, 282 Mass. at 597, 600, 185 N.E. 486 (1933); Holt v. United States, 342 F.2d 163, 165--167 (5th Cir. 1965); State v. Rosenberg, 238 Iowa 621, 625--627 (1947); State v. Smith, 377 S.W.2d 241, 245--246 Second, reasonable cross-examination of a witness for the purpose of showing bias......
  • State v. Hill, No. 47105.
    • United States
    • United States State Supreme Court of Iowa
    • 4 Mayo 1948
    ...of the evidence. In this connection we must view the testimony in the light most favorable to the prosecution. State v. Rosenberg, 238 Iowa 621, 27 N.W.2d 904, 908, 909. It is necessary to refer only to the evidence which tends to support the verdict. State v. Kneedy, 232 Iowa 21, 27, 3 N.W......
  • Request a trial to view additional results

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