State v. Hengen

• Decision Date: 16 December 1898
• Citation: 77 N.W. 453,106 Iowa 711
• Parties: STATE v. HENGEN.
• Court: Iowa Supreme Court

106 Iowa 711

77 N.W. 453

STATE

v.HENGEN.

Supreme Court of Iowa.

Dec. 16, 1898.

Appeal from district court, Polk county; W. F. Conrad, Judge.

The defendant, indicted and convicted of the crime of embezzlement, appeals. Affirmed.Spurrier & Maxwell, for appellant.

Milton Remley, Atty. Gen., for the State.

LADD, J.

The evidence tended to show that Pattee, as manager of the installment house of W. A. Edwards, of Des Moines, in Polk county, and the defendant, there entered into an oral contract by the terms of which the latter agreed to travel and sell goods for Edwards in certain counties of Iowa other than Polk, and to account or report to Edwards at Des Moines by mail every Saturday night, and inclose therewith the leases taken for goods sold or cash received therefor. These leases run from Edwards to the purchaser, permitted payment in installments, and were conditioned that title should not pass until the price was fully paid. Some of the goods were delivered by Pattee to the defendant at Des Moines; others--and most of them--were shipped to him at Dallas, Boone, and Carroll counties, and from these localities he made reports at different times. The general agent demanded an accounting in Carroll, and also in Dallas county. This the defendant failed to make, and insisted on making settlement with Pattee at Des Moines. When he reached Des Moines, he was unable to account for the property received. The evidence tends to show that he appropriated goods of Edwards' delivered or sent to him, valued at $213. If it be conceded that the goods were delivered by Edwards to the defendant as his agent in Polk county, or were sent from there to him elsewhere, and upon the agreement that he was to account for them to Edwards, in Polk county, and he failed to do so when this was demanded, and it appears that he fraudulently converted the same to his own use by selling and appropriating the proceeds in some other county, had the district court of Polk county jurisdiction to try him for such offense? In other words, was the venue properly laid in Polk county? Our statute provides that “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.” Code, § 5157. The venue can always be laid in the county where the conversion actually took place, but it is often as difficult to determine where as it is when that happened. This is especially true of an agent who travels as salesman from town to town through several counties. The authorities agree that, if the transaction constituting the offense extends through different counties, that in which the conversion took place has not the exclusive jurisdiction. 1 Bish. Cr. Proc. 61; 7 Enc. Pl. & Prac. 412. But, unless some essential element constituting the crime of embezzlement occurred in Polk county, the venue could not properly be laid therein. The establishment of the contract creating the fiduciary relation, and the duty to account for the property received, is quite as necessary for conviction as proof of conversion. In Reg. v. Murdock, Dennison & P. Crown Cas. 298, money was received by the accused in Derbyshire, though both parties lived at Nottingham. Upon inquiry concerning the money at the latter place, Murdock admitted having spent it, and the venue was held to be there; Talfourd, J., remarking: “My opinion is, the offense was completed when the prisoner refused to account to his master at Nottingham.” In Reg. v. Rogers, 3 Q. B. 28, the sending of a letter by the defaulting employé, in effect denying the receipt of the money from another county, where he had collected it, to his employers, and its receipt by them in that, where it was his duty to account, and where both resided, gave jurisdiction in the latter county. In these cases the judges assigned different reasons for their conclusion, and at the last Huddleton dissented. The demand and refusal must be regarded, however, only as evidence of conversion, and not essential to constitute the crime. State v. Brooks, 85 Iowa, 366, 52 N. W. 240;Hollingsworth v. State, 111 Ind. 289, 12 N. E. 490;State v....