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State v. Katz, 1949

[Christina Trigoutis ?]

40 N.W.2d 41  http://web2.westlaw.com/shared/text.wl?...rvice= Find&cfid=0&RS=WLW2.09&VR=2.0&n=1

'Q. Since you have been manager of the Des Moines Store? A. No. I wouldn't say that. 
'Q. On that particular day, you did not? A. No sir.' The objection interposed in each instance was in substance that it did not tend to prove any issue in the case and calls for matters collateral to any facts that occurred on the day in question. No question as to it not being cross examination is raised. The crime charged is that appellant denied to John Bibbs equal service, contrary to the Civil Rights Statue. It was encumbent upon the State to prove not only a denial of service, but also that this denial of service was 

(Cite as 241 Iowa 115, * 118, 40 N.W.2d 41, **44)

not 'for reasons by law applicable to all persons'. A showing by the State that it was the policy of appellant to deny service to colored people generally is pertinent to the question as to whether the denial was discriminatory and also as to the existence of a disturbance as claimed by appellant. 
[4][5] Reliance is also placed upon the general rule that a party charged with a crime may not be shown guilty thereof by evidence showing that he has committed other crimes. This rule is well recognized by this Court but we also recognize certain exceptions thereto. Conceding, but not holding, that the evidence in question shows the commission of other crimes, it is clear that such evidence tends to show a planned policy or intent to violate the specific statue, a violation of which is here charged. That under such a situation, such evidence is admissible as an exception to the general rule, see State v. Dunne, 234 Iowa 1185, 15N.W.2d 296; State v. Wheelock, 218 Iowa 178, 254 N.W. 313; State v. Rand, 238 Iowa 250 N.W.2d 800, 170 A.I.R. 289; State v. Cotton, Iowa, 33 N.W.2d 88o; 22 C.J.S., Criminal Law, [?]688. Such evidence was clearly competent and material. 
[6]III. Another assignment of error concerns statements made by the State's attorney. At the close of the appellant's case the State's attorney said: 'At this time the State would like to ask leave to-we would like a recess, a brief recess for the purpose of obtaining the waitress who acted in 

(Cite as: 241 Iowa 115, *118, 40 N.W.2d 41, **44) 

this case. It never occured to me that the *119

(Cite as: 241 Iowa 115, *119, 40 N.W. 2d 41, **44) 

waitress would not be brought here, and I would like the jury to hear her side of the story'.
'The Court: You, as the State, want to put on defendant's witness?'
'Mr. McDonnell, (State's attorney), I want to bring the witness as a rebuttal witness.'
'The Court: If they want to bring in their own witness they can do so'. Appellant objected to the statement of counsel as highly prejudicial and ask that the jury be admonished to disregard counsel's remarks. The objection was overruled. We find nothing prejudicial in counsel's remarks. However, as to remarks of the Court, to which no objection was interposed and which we do not find to be sufficient to warrant a reversal, we do not approve thereof. 
[7]Appellant also objects to certain remarks made by counsel for the State in his argument and cites the cases of State v. Rosier, 55 Iowa 517, 8 N.W. 345 and State v. Cousins, 58 Iowa 250, 12 N.W. 281. Both cases deal with instructions to a jury as to a presumption existing against a party for failure to call a witness and not in point here. The argument in question was not reported and the only record we have is that during the argument, the attorney for the State told the jury that the State could not call the waitress as a witness, but that she was available to the defendant and that the jury should have heard her statement. An objection to the same was overruled. Assuming that the **45

(Cite as 241 Iowa 115, *119, 40 N.W.2d 41, **45)

record is properly before us, under the authority of State

(Cite as: 241 Iowa 115, *119, 40 N.W.2d 41, **45)

v. Peirce, 178 Iowa 417, 159 N.W.1050. and State v. Boyd, 199 Iowa 1206, 200 N.W. 205, the trial court did not err in overruling the objection. 
IV. Error is assigned in the giving of instructions No. 3 and 4 and in refusing to give requested instructions No.3 and 4.
[8][9] Instruction No.3 stated that the State must show that the defendant did infringe the civil rights of John Bibbs by refusing him food or drink. Instruction No. 4 told the jury that if it found the defendant refused to serve food or drink to John Bibbs it should convict the defendant. Instruction No.7 told the jury that before it could convict the defendant, the State must *120

(Cite as: 241 Iowa 115, *120,  40 N.W.2d 41, **45)

show that the defendant refused to serve John Bibbs and that such refusal was on account of his race, creed or color. Instruction No. 10 told the jury to consider all of the instructions and to construe them together. It is a rule too well established to call for a citation of authority, that in scrutinizing a trial court's instructions to a jury for possible error, the charge much be read in relation to the context. It cannot properly be separated into parts and

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[Christina Trigoutis ?] 40 N.W.2d 41 http://web2.westlaw.com/shared/text.wl?...rvice= Find&cfid=0&RS=WLW2.09&VR=2.0&n=1 'Q. Since you have been manager of the Des Moines Store? A. No. I wouldn't say that. 'Q. On that particular day, you did not? A. No sir.' The objection interposed in each instance was in substance that it did not tend to prove any issue in the case and calls for matters collateral to any facts that occurred on the day in question. No question as to it not being cross examination is raised. The crime charged is that appellant denied to John Bibbs equal service, contrary to the Civil Rights Statue. It was encumbent upon the State to prove not only a denial of service, but also that this denial of service was (Cite as 241 Iowa 115, * 118, 40 N.W.2d 41, **44) not 'for reasons by law applicable to all persons'. A showing by the State that it was the policy of appellant to deny service to colored people generally is pertinent to the question as to whether the denial was discriminatory and also as to the existence of a disturbance as claimed by appellant. [4][5] Reliance is also placed upon the general rule that a party charged with a crime may not be shown guilty thereof by evidence showing that he has committed other crimes. This rule is well recognized by this Court but we also recognize certain exceptions thereto. Conceding, but not holding, that the evidence in question shows the commission of other crimes, it is clear that such evidence tends to show a planned policy or intent to violate the specific statue, a violation of which is here charged. That under such a situation, such evidence is admissible as an exception to the general rule, see State v. Dunne, 234 Iowa 1185, 15N.W.2d 296; State v. Wheelock, 218 Iowa 178, 254 N.W. 313; State v. Rand, 238 Iowa 250 N.W.2d 800, 170 A.I.R. 289; State v. Cotton, Iowa, 33 N.W.2d 88o; 22 C.J.S., Criminal Law, [?]688. Such evidence was clearly competent and material. [6]III. Another assignment of error concerns statements made by the State's attorney. At the close of the appellant's case the State's attorney said: 'At this time the State would like to ask leave to-we would like a recess, a brief recess for the purpose of obtaining the waitress who acted in (Cite as: 241 Iowa 115, *118, 40 N.W.2d 41, **44) this case. It never occured to me that the *119 (Cite as: 241 Iowa 115, *119, 40 N.W. 2d 41, **44) waitress would not be brought here, and I would like the jury to hear her side of the story'. 'The Court: You, as the State, want to put on defendant's witness?' 'Mr. McDonnell, (State's attorney), I want to bring the witness as a rebuttal witness.' 'The Court: If they want to bring in their own witness they can do so'. Appellant objected to the statement of counsel as highly prejudicial and ask that the jury be admonished to disregard counsel's remarks. The objection was overruled. We find nothing prejudicial in counsel's remarks. However, as to remarks of the Court, to which no objection was interposed and which we do not find to be sufficient to warrant a reversal, we do not approve thereof. [7]Appellant also objects to certain remarks made by counsel for the State in his argument and cites the cases of State v. Rosier, 55 Iowa 517, 8 N.W. 345 and State v. Cousins, 58 Iowa 250, 12 N.W. 281. Both cases deal with instructions to a jury as to a presumption existing against a party for failure to call a witness and not in point here. The argument in question was not reported and the only record we have is that during the argument, the attorney for the State told the jury that the State could not call the waitress as a witness, but that she was available to the defendant and that the jury should have heard her statement. An objection to the same was overruled. Assuming that the **45 (Cite as 241 Iowa 115, *119, 40 N.W.2d 41, **45) record is properly before us, under the authority of State (Cite as: 241 Iowa 115, *119, 40 N.W.2d 41, **45) v. Peirce, 178 Iowa 417, 159 N.W.1050. and State v. Boyd, 199 Iowa 1206, 200 N.W. 205, the trial court did not err in overruling the objection. IV. Error is assigned in the giving of instructions No. 3 and 4 and in refusing to give requested instructions No.3 and 4. [8][9] Instruction No.3 stated that the State must show that the defendant did infringe the civil rights of John Bibbs by refusing him food or drink. Instruction No. 4 told the jury that if it found the defendant refused to serve food or drink to John Bibbs it should convict the defendant. Instruction No.7 told the jury that before it could convict the defendant, the State must *120 (Cite as: 241 Iowa 115, *120, 40 N.W.2d 41, **45) show that the defendant refused to serve John Bibbs and that such refusal was on account of his race, creed or color. Instruction No. 10 told the jury to consider all of the instructions and to construe them together. It is a rule too well established to call for a citation of authority, that in scrutinizing a trial court's instructions to a jury for possible error, the charge much be read in relation to the context. It cannot properly be separated into parts and 6 of 7 3/29/00 2:40 PM