State v. Wardenburg

• Citation: 261 Iowa 1395,158 N.W.2d 147
• Decision Date: 09 April 1968
• Docket Number: No. 52587,52587
• Parties: STATE of Iowa, Appellant, v. Roger WARDENBURG, Appellee.
• Court: United States State Supreme Court of Iowa

Page 147

158 N.W.2d 147

261 Iowa 1395

STATE of Iowa, Appellant, v. Roger WARDENBURG, Appellee.

No. 52587.

Supreme Court of Iowa.

April 9, 1968.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., William G. Faches, County Atty., and Eugene J. Kopecky, Asst. County Atty., Cedar Rapids, for appellant.

Keith E. Stapleton, Cedar Rapids, for appellee.

MASON, Justice.

A Linn County grand jury indicted defendant Roger Wardenburg for the crime of forgery, contrary to section 718.1, 1962 Code of Iowa. At arraignment defendant pleaded not guilty. Some weeks later trial to a jury was commenced and, after the State had presented its evidence and rested, defendant moved to dismiss the charge. He asserted in paragraphs 1 and 2 of his motion the State had failed to establish beyond a reasonable doubt that (1) any public offense had been committed in Linn County and (2) the Linn district court had jurisdiction of any public offense alleged to have been committed by defendant which jurisdiction is contemplated by Code section 753.2. The trial court sustained the motion as to the grounds asserted in these paragraphs.

The State appeals, assigning as the sole error relied upon the trial court's sustaining defendant's motion to dismiss at the close of the State's evidence for the reason there was insufficient evidence to establish the venue of the offense.

I. Section 793.1, Codes, 1962, 1966, gives the State the right to appeal in a criminal case. It is settled in Iowa that an appeal by the State will be permitted only if it 'involves questions of law, either substantive or procedural, whose determination will be beneficial generally, or guide the trial courts in the future * * *.' State v. Kriens, 255 Iowa 1130, 1131, 125 N.W.2d 263, 264, and citations. But there are statutory limitations upon the effect or results of that appeal. Code section 793.20 provides that if the State appeals, this court cannot reverse or modify the judgment in favor of defendant so as to increase the punishment 'but may affirm it, and shall point out any error in the proceedings or in the measure of punishment, and its decision shall be obligatory as law.'

In support of its assigned error the State initially argues that sufficient evidence consisting of a considerable number of enumerated facts was produced from which 'a jury could decide the issue of venue.'

Ordinarily on appeals by the State from a judgment on directed verdict for defendant, involving sufficiency of the evidence to establish the charge, we will not review the record to determine the correctness of the decision. A pronouncement from us on the fact situation in one case rarely serves any good purpose in determination of future cases. Such appeals by the State are useless. While the matter of sufficiency or insufficiency of the evidence is a question of law, this court will refuse to review the record where it will benefit no one. State v. Wickett, 230 Iowa 1182, 1185, 300 N.W. 268, 269--270. In other words, to review an appeal by the State some general benefit or guide to the trial courts or profession must be shown.

If this contention were the only one raised, we would be inclined to dismiss the appeal as presenting no question of law we are required to review. However, the attorney general requested and was granted permission from us to file supplemental brief and argument on appellant's side. He contends there is a presumption or inference 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. We believe a determination of this query is desirable.

II. Before discussing this contention further, we briefly narrate the facts. Jack's Store, a discount department store in Cedar Rapids, is owned by Walter Fineberg of Minneapolis. In February 1966 he employed defendant, who resided with his wife in Cedar Rapids, as manager of this store. Defendant's duties included supervision of the help, sales and marketing of merchandise, making bank deposits and reporting employees' time.

Store employees were paid weekly through Saturdays. Each Monday defendant would telephone Mr. Fineberg in Minneapolis to advise him how many hours each employee had worked through the previous Saturday. Fineberg would then issue and mail individual checks to defendant in Cedar Rapids to be distributed.

Monday, August 15, defendant reported the times of various employees including Kathie Welsh, a clerk who had been employed in the Cedar Rapids store approximately six months. When defendant reported Mrs. Welsh had 32 hours coming and that he had discharged her Friday, August 12, Mr. Fineberg called her to inquire whether she wanted her check mailed to the store or to her home. He then learned she had been discharged August 5 and paid August 9; that she didn't have any money coming for the week ending August 13. However, August 16 Fineberg issued a check in the amount of $41.05, payable to Kathie Welsh, and mailed it to defendant along with other checks, including one payable to him, to meet the Cedar Rapids payroll. All paychecks were signed by Mr. Fineberg.

Later Fineberg picked up this check at the First Hennepin State Bank of Minneapolis where his account had been debited with the amount thereof. At the trial he identified the State's exhibit 1 as the check mailed at defendant's request as Mrs. Welsh's final payment. This is the check upon which the indictment is based.

Mrs. Welsh testified her employment at Jack's Store terminated August 5; she had never received the check identified as State's exhibit 1 or any payment therefrom; the endorsment on the check, 'Kathie Welsh,' was not her signature, and she had not given defendant or anyone else permission to sign her name.

While employed at Jack's Store Mrs. Welsh borrowed $400 from Merchants National Bank in Cedar Rapids plus $200 from defendant to purchase a car. Defendant secured the money he loaned Mrs. Welsh from the same bank. At the time of her discharge she had repaid defendant all but $40.

The State introduced a known exemplar of defendant's handwriting identified as exhibit 2 which was used by the State's handwriting expert in forming his opinion that the same person who had written exhibit 2 wrote the endorsement on the State's exhibit 1 and this endorsement was not written by the same person who had written the State's exhibit 3, an exemplar of Mrs. Welsh's handwriting.

On the back of exhibit 1 was a rubber stamp. Although all words were not legible, 'Pay any Bank, P.E.G., The Merchants National Bank of Cedar Rapids, Iowa' appeared. In ruling on defendant's motion, the trial court emphasized the fact the State had offered no evidence tending to show the meaning of the quoted words; no bank officer or employee was called to testify this was the stamp of the Merchants National Bank or that it meant in the normal course of business the check was originally negotiated at this bank in Linn County. He then determined the rubber stamp alone did not have this probative value and testimony as to the meaning of the stamp was essential to support the State's contention the check had been uttered in Linn County.

III. Courts have long recognized the difficulty of proving by direct evidence the location where a forgery actually occurred, due to the very nature of the act itself. See Annotation 164 A.L.R. 621, 649--660.

Acts of this sort are not usually done in the presence of witnesses but in places of concealment, with a view to prevent detection; and it is rarely that the prosecution can offer any evidence of the place of forgery, except that which arises from the utterance of the forged instrument. Because of this obvious difficulty, courts have relied on various presumptions or inferences to permit a finding of proper jurisdiction and venue, in order to make prosecution possible. Usually these presumptions or inferences result from defendant's possession or uttering of the forged instrument.

Ordinarily, 'jurisdiction, as contrasted with venue, refers to the power of the court to decide an issue on its merits, whereas venue refers to the place where the cause sued upon should be tried.' O'Kelley v. Lochner, 259 Iowa 710, 145 N.W.2d 626, 627; and Hulburd v. Eblen, 239 Iowa 1060, 1064, 33 N.W.2d 825, 827.

'It is the well-settled law in this Stat that the jurisdiction of the district court is limited to offenses committed within the county in which the court is held. Section 13449, Code, 1935 (Now section 753.2, Code, 1966). This statute provides that: 'The local jurisdiction of the district court is of offenses committed within the county in which it is held.'

'Under this statute a conviction cannot be sustained unless the State proves that the crime was committed within the county in which the indictment was returned. * * *' State v. Brooks, 222 Iowa 651, 652, 269 N.W. 875.

State v. Ladd, 252 Iowa 487, 489, 106 N.W.2d 100, 101, relying on the Brooks case, interprets this statute as making Venue a jurisdictional fact the State must prove as a vital ingredient of any prosecution and, unless the court takes judicial notice thereof or the accused admits it, the same must be shown by competent evidence either direct or circumstantial. See also State v. Stumbo, 253 Iowa 276, 278, 111 N.W.2d 664, 665; and 23 C.J.S. Criminal Law § 914a.

Venue is put in issue by a plea of not guilty. Sharp. v. Waddill, Ky., 371 S.W.2d 14, and citations.

IV. We believe it would be beneficial as a guide to the trial courts and the profession for us to determine the degree of certainty required by law for the State to establish venue in a criminal prosecution.

In announcing his ruling the court stated:

'One of the things the State must prove in every criminal prosecution is that the offense charged took place within the county of prosecuti...