State v. Dykes, No. 52313

CourtUnited States State Supreme Court of Iowa
Writing for the CourtBECKER
Citation261 Iowa 1363,158 N.W.2d 154
PartiesSTATE of Iowa, Appellee, v. Dick DYKES, Appellant.
Decision Date09 April 1968
Docket NumberNo. 52313

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.

[261 Iowa 1364]

Page 155

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 [261 Iowa 1365] 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

Page 156

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

[261 Iowa 1366] '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...

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3 practice notes
  • State v. Williams, No. 53542
    • United States
    • United States State Supreme Court of Iowa
    • September 24, 1970
    ...of some overt act of defendant which is inconsistent with the rights of the true owner of the property; State v. Dykes (Iowa, 1968), 158 N.W.2d 154 (sale of corn at other than designated elevator); State v. Christiansen, 231 Iowa 525, 1 N.W.2d 623 (admitted collection of monies retained by ......
  • State v. Hackett, No. 55156
    • United States
    • United States State Supreme Court of Iowa
    • May 11, 1972
    ...in the state and county alleged, the proof is sufficient. * * *.' 30 Am.Jur.2d, Evidence, section 1131.' See also State v. Dykes, 261 Iowa 1363, 1365, 158 N.W.2d 154, In State v. Conley, 176 N.W.2d 213, 215 (Iowa 1970), the court made this statement: '* * * This court has repeatedly held co......
  • State v. Cauble, No. 14433
    • United States
    • Supreme Court of Utah
    • April 20, 1977
    ...(1975 Pocket Supp.). 8 76--6--404, U.C.A. 1953 (1975 Pocket Supp.). 9 76--6--401, U.C.A. 1953 (1975 Pocket Supp.). 10 State v. Dykes, 261 Iowa 1363, 158 N.W.2d 154 (1968); Williams v. State, 365 P.2d 569 (Okl.Cr.1961); People v. Brock, 21 Cal.App.2d 601, 70 P.2d 210 11 People v. Keller, 79 ......
3 cases
  • State v. Williams, No. 53542
    • United States
    • United States State Supreme Court of Iowa
    • September 24, 1970
    ...of some overt act of defendant which is inconsistent with the rights of the true owner of the property; State v. Dykes (Iowa, 1968), 158 N.W.2d 154 (sale of corn at other than designated elevator); State v. Christiansen, 231 Iowa 525, 1 N.W.2d 623 (admitted collection of monies retained by ......
  • State v. Hackett, No. 55156
    • United States
    • United States State Supreme Court of Iowa
    • May 11, 1972
    ...in the state and county alleged, the proof is sufficient. * * *.' 30 Am.Jur.2d, Evidence, section 1131.' See also State v. Dykes, 261 Iowa 1363, 1365, 158 N.W.2d 154, In State v. Conley, 176 N.W.2d 213, 215 (Iowa 1970), the court made this statement: '* * * This court has repeatedly held co......
  • State v. Cauble, No. 14433
    • United States
    • Supreme Court of Utah
    • April 20, 1977
    ...(1975 Pocket Supp.). 8 76--6--404, U.C.A. 1953 (1975 Pocket Supp.). 9 76--6--401, U.C.A. 1953 (1975 Pocket Supp.). 10 State v. Dykes, 261 Iowa 1363, 158 N.W.2d 154 (1968); Williams v. State, 365 P.2d 569 (Okl.Cr.1961); People v. Brock, 21 Cal.App.2d 601, 70 P.2d 210 11 People v. Keller, 79 ......

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