State v. Tilley, 53983

• Decision Date: 05 May 1970
• Docket Number: No. 53983,53983
• Citation: 176 N.W.2d 843
• Parties: STATE of Iowa, Appellee, v. Weldon Leroy TILLEY, Appellant.
• Court: Iowa Supreme Court

Page 843

176 N.W.2d 843

STATE of Iowa, Appellee, v. Weldon Leroy TILLEY, Appellant.

No. 53983.

Supreme Court of Iowa.

May 5, 1970.

Louis A. Lavorato, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., James W. Hughes, Asst. Atty. Gen., Ray Fenton, Polk County Atty., for appellee.

STUART, Justice.

Defendant, Weldon LeRoy Tilley, was charged with and subsequently convicted of the crime of forgery as defined in section 718.1, Code of Iowa. The defendant on this appeal claims the state has failed to prove beyond reasonable doubt that defendant committed the crime in Polk County and therefore the Polk County District Court had no jurisdiction citing section 753.2, Code of Iowa.

A $94.67 check on the Valley Bank of Des Moines payable to Paul Aldrich, was on its face drawn by Kenneth Link, for the Captain's Table Restaurant. This check was cashed at a Dahl's food store in Des Moines, but when it was later presented for payment, the drawee bank refused payment as the check had been drawn on a closed account. Link, who knew defendant, denied drawing or authorizing the drawing of the check. The check was not cashed by Aldrich or with his consent. While defendant Tilley was in custody the police took a handwriting examplar after giving him the standard but here unnecessary Miranda warning. State v. Johnson (1968), Iowa, 155 N.W.2d 512; and State v. Sefcheck (1968), Iowa, 157 N.W.2d 128; citing Gilbert v. State of California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Also see: Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

The handwriting examplar and forged check were then examined by Duane Barton, qualified handwriting expert employed by the Iowa Bureau of Criminal Investigation, who later testified that, in his opinion, the handwriting on the examplar and on forged check was the same. Mrs. Battles, service counter clerk at Dahl's, testified she was so employed on the date that the forged check was uttered but that she could not identify the person who cashed the forged check.

We recently analyzed the problem of proving venue in forgery cases and recognized there is a 'presumption that an instrument was forged in the county where its existence was first known or it was offered in a forged condition which will suffice to sustain the venue of a forgery prosecution in that county unless there is other evidence to overcome that conclusion'. State v. Wardenburg (1968), Iowa, 158 N.W.2d 147, 153.

Defendant contends, however, that such 'presumption depends upon proof that the uttering was by the same person charged with the alteration, or that the one so charged had possession of the instrument where the uttering occurred' and as there was no proof this defendant uttered the check or that it was in his possession in its forged condition in Polk County, the state failed to establish venue. He bases his position on our statement of this rule in State v. Wardenburg, supra, 158 N.W.2d at 152. It is a broadly accepted limitation supported by the cited authorities.

We there pointed out there was really no practical venue problem when the defendant could be identified as the utterer, for he could be charged with uttering rather than forgery. We applied the presumption although there was no evidence defendant uttered the forged instrument or had possession of it in Linn County. In many important respects, this case and State v. Wardenburg, supra, are quite similar. In neither case was the person who uttered the check identified. In neither case was there direct evidence showing defendant had possession of the forged instrument in the county. In both cases expert witnesses by comparing handwriting examplars with the forged instruments furnished evidence that defendant committed the forgery. However, in Wardenburg there was evidence the check on which payee's endorsement was forged was mailed to defendant's home in Cedar Rapids. Here the only evidence connecting defendant to the forged instrument was the testimony of the handwriting expert.

In stating the presumption of venue on page 153 of Wardenburg we intentionally omitted the requirement of proof that the person charged uttered or had possession of the forged instrument in the county. The courts have long recognized the practical problem of proving where a forgery was actually committed and the need for a presumption of venue, if substantial justice was to be achieved. The reasons were well stated by Justice Story in United States v. Britton (2 CCA, 1822), 2 Mason 464, 470--471, 24 Fed.Cas. pp. 1239, 1241.

'The rule, which I have stated, is not merely correct in a legal sense, but is the dictate of common sense and reason. If a forged instrument is found or uttered in one place, and there is no evidence to show...