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State v. Katz, 1949
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40 N.W.2d 41 http://web2.westlaw.com/shared/text.wl?...rvice= Find&cfid=0&RS=WLW2.09&VR=2.0&n=1 (Cite as: 241 Iowa 115, *115, 40 N.W.2d 41, **43) Rights and on a trial to a jury, was found guilty. The information was in substance as follows: "That the defendant * * * did unlawfully and willfully and feloniously infringe upon the civil right of one John Bibbs by refusing to serve him at the soda fountain in violation of Section 735.1, Code of 1946 [I.C.A.]'. Prior to a trial upon a plea of not guilty, a demurrer to the Information and a motion to quash was overruled. The defendant appeals. Appellant is the manager of the Katz Drug Store in Des Moines, Iowa. This store operates a lunch counter at which food and soft drinks are served to the general public, this being a department of the drug store. On July 7, 1949, three Negroes, John Bibbs, Edna Griffen and Leonard Hudson went to the Katz store, where two of them, Bibbs and Mrs. Griffen, took seats at the soda (Cite as: 241 Iowa 115, *115, 40 N.W.2d 41, **43) fountain. The three, as witnesses for the State, testify in substance that, after waiting for a few moments, a waitress took their order and as she started to fill them, a boy whispered something to her and she then informed the witnesses that 'We don't serve colored'; that they asked to see the manager and a Mr. Gore, fountain manager came to the fountain. Upon being asked why they were not served, stated 'that it is the policy of our store that we don't serve colored; we don't have the proper equipment'. The general manager, the defendant M.C. Katz, was called to the fountain and when asked why they were not being served, stated 'I cater to a large body of white trade and don't have the proper equipment to serve you.' Both Mrs. Griffen and John Bibbs state that they did request service of either Mr. Gore or Mr. Katz. Mr. Hudson states that he states to Mr. Katz that he desired a drink at the fountain. Appellant katz and Mr. Gore appeared as witnesses for the appellant. They each state that the three Negroes created a disturbance and that in such a situation, when a disturbance is created, whether they be white or black, 'we don't serve them.' A fair deduction from the record is to the effect that Negroes have never been served at the fountain in the Katz store. It also is a fair deduction, that the three Negroes, all members of Progressive Party of Iowa, by pre-arrangement went to the Katz store for the purpose of making a test case in the event that they were denied service. *117 (Cite as 241 Iowa 115, *117, 40 N.W.2d 41, **43) 1. Appellant assigns as error the overruling of the demurrer to the (Cite as: 241 Iowa 115, *117, 40 N.W.2d 41, **43) information, asserting that the same does not charge a crime. Section 735.1, Code 1946, I.C.A, provides: All persons within this state shall be entitles to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, restaurants, chophouses, eating houses, lunch counters, and all other places where refreshments are served, public conveyances, barber shops, bathhouses, theaters, and all other places of amusement.' Section 735.2, Code of 1946, I.C.A., states: 'Any person who shall violate the provision of section 735.1 by denying to any person, except for reasons by law applicable to all persons, the full enjoyment of any of the accommodations, * * *, or by aiding or inciting such denial, shall be guilty of a misdemeanor * * *.' '(The italics supplied.) [1] It is the appellant's claim that an Information which does not negative the exception in the statute, noted above, fails to state a crime. The case of State v. Hall, 72 Iowa 525, 34 N.W. 315, is cited as authority for this position and it holds just that, but appellant overlooks Chapter 266, Acts 43rd G.A. of Iowa, Sections 773.2 to 773.34, incl., and enacted long after the decision in the Hall case. Secion 773.23 provides: ' No indictment for an offense created or defined by statute shall be invalid or insufficient merely for the reason that it fails to negative any exception, excuse or proviso contained in the statue creating or defining the offense.' Section 773-33 states: '* * * no information for a non-indictable offense which charges the (Cite as: 241 Iowa 115, *117, 40 N.W.2d 41, **43) offense in accordance with the provisions of this act shall be held to be insufficient.' See State v. Dunley, 227 Iowa 1085, 290 N.W. 41. The demurrer was properly overruled. [2][3]II. Another assigned error in the admission of certain evidence. The **44 (Cite as ;241 Iowa 115, *117, 40 N.W.2d 41, **44) testimony complained of was adduced upon cross examination. Witness Gore was asked: 'Q. As a matter of fact, Mr. Gore, have you ever served colored people in the Katz Drug Store? A. No, I haven't. * * * 'Q. But as a matter of fact you don't serve colored people, do you? A. That is true.' *118 (Cite as 241 Iowa 115, *118, 40 N.W.2d 41, **44) Appellant Katz was asked: 'Q. What is the fact as to whether or not you do serve colored people? * * *A. I haven't served any. 5 of 7 3/29/00 2:40 PM
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40 N.W.2d 41 http://web2.westlaw.com/shared/text.wl?...rvice= Find&cfid=0&RS=WLW2.09&VR=2.0&n=1 (Cite as: 241 Iowa 115, *115, 40 N.W.2d 41, **43) Rights and on a trial to a jury, was found guilty. The information was in substance as follows: "That the defendant * * * did unlawfully and willfully and feloniously infringe upon the civil right of one John Bibbs by refusing to serve him at the soda fountain in violation of Section 735.1, Code of 1946 [I.C.A.]'. Prior to a trial upon a plea of not guilty, a demurrer to the Information and a motion to quash was overruled. The defendant appeals. Appellant is the manager of the Katz Drug Store in Des Moines, Iowa. This store operates a lunch counter at which food and soft drinks are served to the general public, this being a department of the drug store. On July 7, 1949, three Negroes, John Bibbs, Edna Griffen and Leonard Hudson went to the Katz store, where two of them, Bibbs and Mrs. Griffen, took seats at the soda (Cite as: 241 Iowa 115, *115, 40 N.W.2d 41, **43) fountain. The three, as witnesses for the State, testify in substance that, after waiting for a few moments, a waitress took their order and as she started to fill them, a boy whispered something to her and she then informed the witnesses that 'We don't serve colored'; that they asked to see the manager and a Mr. Gore, fountain manager came to the fountain. Upon being asked why they were not served, stated 'that it is the policy of our store that we don't serve colored; we don't have the proper equipment'. The general manager, the defendant M.C. Katz, was called to the fountain and when asked why they were not being served, stated 'I cater to a large body of white trade and don't have the proper equipment to serve you.' Both Mrs. Griffen and John Bibbs state that they did request service of either Mr. Gore or Mr. Katz. Mr. Hudson states that he states to Mr. Katz that he desired a drink at the fountain. Appellant katz and Mr. Gore appeared as witnesses for the appellant. They each state that the three Negroes created a disturbance and that in such a situation, when a disturbance is created, whether they be white or black, 'we don't serve them.' A fair deduction from the record is to the effect that Negroes have never been served at the fountain in the Katz store. It also is a fair deduction, that the three Negroes, all members of Progressive Party of Iowa, by pre-arrangement went to the Katz store for the purpose of making a test case in the event that they were denied service. *117 (Cite as 241 Iowa 115, *117, 40 N.W.2d 41, **43) 1. Appellant assigns as error the overruling of the demurrer to the (Cite as: 241 Iowa 115, *117, 40 N.W.2d 41, **43) information, asserting that the same does not charge a crime. Section 735.1, Code 1946, I.C.A, provides: All persons within this state shall be entitles to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, restaurants, chophouses, eating houses, lunch counters, and all other places where refreshments are served, public conveyances, barber shops, bathhouses, theaters, and all other places of amusement.' Section 735.2, Code of 1946, I.C.A., states: 'Any person who shall violate the provision of section 735.1 by denying to any person, except for reasons by law applicable to all persons, the full enjoyment of any of the accommodations, * * *, or by aiding or inciting such denial, shall be guilty of a misdemeanor * * *.' '(The italics supplied.) [1] It is the appellant's claim that an Information which does not negative the exception in the statute, noted above, fails to state a crime. The case of State v. Hall, 72 Iowa 525, 34 N.W. 315, is cited as authority for this position and it holds just that, but appellant overlooks Chapter 266, Acts 43rd G.A. of Iowa, Sections 773.2 to 773.34, incl., and enacted long after the decision in the Hall case. Secion 773.23 provides: ' No indictment for an offense created or defined by statute shall be invalid or insufficient merely for the reason that it fails to negative any exception, excuse or proviso contained in the statue creating or defining the offense.' Section 773-33 states: '* * * no information for a non-indictable offense which charges the (Cite as: 241 Iowa 115, *117, 40 N.W.2d 41, **43) offense in accordance with the provisions of this act shall be held to be insufficient.' See State v. Dunley, 227 Iowa 1085, 290 N.W. 41. The demurrer was properly overruled. [2][3]II. Another assigned error in the admission of certain evidence. The **44 (Cite as ;241 Iowa 115, *117, 40 N.W.2d 41, **44) testimony complained of was adduced upon cross examination. Witness Gore was asked: 'Q. As a matter of fact, Mr. Gore, have you ever served colored people in the Katz Drug Store? A. No, I haven't. * * * 'Q. But as a matter of fact you don't serve colored people, do you? A. That is true.' *118 (Cite as 241 Iowa 115, *118, 40 N.W.2d 41, **44) Appellant Katz was asked: 'Q. What is the fact as to whether or not you do serve colored people? * * *A. I haven't served any. 5 of 7 3/29/00 2:40 PM
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