State v. Dykes

• Decision Date: 09 April 1968
• Docket Number: No. 52313,52313
• Citation: 261 Iowa 1363,158 N.W.2d 154
• Parties: STATE of Iowa, Appellee, v. Dick DYKES, Appellant.
• Court: Iowa Supreme Court

Page 154

158 N.W.2d 154

261 Iowa 1363

STATE of Iowa, Appellee, v. Dick DYKES, Appellant.

No. 52313.

Supreme Court of Iowa.

April 9, 1968.

Martin R. Dunn, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and John Vasey, County Atty. of Nevada, for appellee.

BECKER, Justice.

Defendant was charged in Story County with embezzlement by carrier, pleaded not guilty and upon trial to jury was convicted as charged. His sole assignment of error charges the State failed to prove the unlawful taking or conversion took place in Story County. We affirm judgment on the verdict.

Defendant's appeal was submitted on clerk's transcript, decided and reported at 145 N.W.2d 471. On petition for rehearing we granted defendant's request to resubmit on a printed record and written briefs. This opinion supersedes the former opinion in this case.

From the evidence presented by the State the jury could find the following facts: Defendant truck driver hauled grain for the Pillsbury Company. On July 3 he picked up a load of 804 bushels of corn at Collins in Story County for delivery to the Pillsbury plant in Davenport, Scott County. He took the corn to Centerville in Appanoose County where he sold it for $996 to Cargill Mill & Elevator Company. Defendant had not been authorized to sell the corn or to deliver it anywhere but to its destination in Davenport. After his arrest defendant told a special agent of the Iowa Bureau of Criminal Investigation he took the load of corn to Centerville and Mr. Birkestrand, an agent of Pillsbury, told defendant it would be all right to sell the corn at Centerville. Mr. Birkestrand denied this conversation.

Defendant was a witness. When he picked up the corn at Collins it was about 3 P.M. on July 3 and he did not think he could get the corn to Davenport before Pillsbury closed. He therefore went to Des Moines and thence to Centerville where he lived. He had tire trouble at Centerville. On July 6 he phoned Mr. Birkestrand and asked to sell the corn in Centerville since he had tire trouble on his truck. He said Mr. Birkestrand agreed, so he sold the grain. The record is silent as to what he did with the proceeds.

I. The sole issue is one of venue. Since we have considered venue problems in relation to forgery prosecutions in State v. Wardenburg, Iowa, 158 N.W.2d 147, (opinion filed April 9, 1968) we should review certain principles there noted: 'In order to secure a conviction in a criminal prosecution it is necessary to show not only that the act denounced as a crime has been committed but that it has been committed within the territory where the law invoked for its punishment prevails.

'We therefore hold venue must be proved beyond a reasonable doubt.

'V. Although the burden of proof is to convince beyond a reasonable doubt, the State can generate a jury question on the issue of venue by producing evidence which is either direct or circumstantial from which it may be inferred. No positive testimony that the violation occurred at a specific place is required, it is sufficient if it can be concluded from the evidence as a whole that the act was committed in the county where the indictment is found. Circumstantial evidence may be and often is stronger and more convincing than direct evidence.'

The above principles are general in nature and applicable to venue problems in embezzlement cases. The statutes involved are, Iowa Code, 1966:

'710.10 Embezzlement by carrier or persons entrusted. If any carrier or other person to whom any money, goods, or other property which may be the subject of larceny has been delivered to be carried for hire, or if any other person entrusted with such property, embezzle or fraudulently convert to his own use any such money, goods, or other property, either in the mass as the same were delivered or otherwise, and before the same were delivered at the place or to the person where and to whom they were to be delivered, he is guilty of larceny.' and

'753.4 Offenses partly in county. When a public offense is committed partly in one county and partly in another, or when the acts or effects constituting or requisite to the consummation of the offense occur in two or more counties, jurisdiction is in either county except as otherwise provided by law.'

In accord with the principles set forth in State v. Wardenburg, supra, and the statutes cited, the trial court correctly instructed the jury:

'Before defendant can be convicted of embezzlement, the State must prove all of the following elements of such offense by the evidence beyond a reasonable doubt, with respect to the incident in question: * * * (6) That the offense was committed within the jurisdiction of this court.'

Element six was explained in instruction No. 15 as follows:

'Regarding the sixth element, this Court only has jurisdiction within Story County, Iowa.

'One charged with embezzlement may be prosecuted in the county where the unlawful taking and conversion of the property takes place. If the State has proved this contention by the evidence beyond a reasonable doubt, then it has established the sixth element; otherwise not.'

II. Our most recent case involving venue in an embezzlement case seems to be State v. Bisanti, 233 Iowa 748, 750, 9 N.W.2d 279, 281 where the following rule is repeated: 'It has been the rule in this state for many years that one charged with embezzlement may be prosecuted either in the county where the unlawful taking and conversion of his principal's money took place, or in the county where it was his duty to make an accounting of the money to his principal. Appellant does not seriously question that such is the law. The following decisions fully sustain the rule: State v. Hengen, 106 Iowa 711, 77 N.W. 453, where the matter is fully discussed by Ladd, J.; State v. Maxwell, 113 Iowa 369, 370, 85 N.W. 613; State v. Stuart, 190 Iowa 476, 479, 180 N.W. 186.'

Relying on State v. Bisanti, supra, and the cases cited therein, defendant argues the only two counties having jurisdiction in this case are Appanoose, where the grain was sold, and Scott, where there was a duty to account. This assumes elements of the crime could not be shown to have been committed in any other county.

Concerning this section we said in State v. Hengen, 106 Iowa 711, 712, 77 N.W. 453: 'The venue can...