State v. Witherill

Annotate this Case

174 N.W.2d 329 (1970)

STATE of Minnesota, Respondent, v. Delia Rose WITHERILL, Appellant.

No. 41552.

Supreme Court of Minnesota.

January 30, 1970.

Sherman Bergstein, Minneapolis, Lynn Castner, Minneapolis, of counsel, for appellant.

Douglas M. Head, Atty. Gen., Richard Kyle, Sol. Gen., St. Paul, George Scott, County Atty., Keith M. Stidd, City Atty., Edward C. Vavreck, Asst. City Atty., Minneapolis, for respondent.

*330 Heard before KNUTSON, C. J., and NELSON, MURPHY, OTIS and FRANK T. GALLAGHER, JJ.



While executing a warrant to search the first-floor front apartment at 2010 Second Street South, Minneapolis, Minnesota, Minneapolis police officers attached to the narcotics squad arrested Delia Witherill, and one of the officers subsequently made a complaint against her for using foul and obscene language in violation of a city ordinance.[1] Delia, a girl 22 years of age, lived in the first-floor rear apartment of 2010 Second Street South. She was sitting on an outside stairway on the east side of the building when the police were leaving. When an officer took her picture, she made a finger gesture and used a four-letter word pertaining to sexual intercourse. The officer immediately arrested her.

She was tried and found guilty by a judge in Hennepin County Municipal Court. She appealed to the district court, waived a jury trial, and was again found guilty.

Defendant contends that the refusal to allow her to argue last in the final argument in the district court trial was prejudicial. The judge who tried the case in district court has had many years of experience in trying all types of cases and the order of the final argument would have had no material effect on his decision.

We have reviewed the record in its entirety and it is our opinion that the judgment of the district court must be affirmed. City of St. Paul v. Morris, 258 Minn. 467, 104 N.W.2d 902. See, also, State v. Leonard, 255 Iowa 1365, 124 N.W.2d 429; State v. Ceci (Del.Super.) 255 A.2d 700.



[1] Minneapolis Code of Ordinances, ยง 870.120, which provides in part: "No person, in any public or private place shall engage in, or offer or attempt to engage in, on congregate because of * * * (b) the use of slanderous, foul, obscene, or indecent language."