State v. Warren, 55853

• Decision Date: 14 November 1973
• Docket Number: No. 55853,55853
• Citation: 212 N.W.2d 509
• Parties: STATE of Iowa, Appellee, v. Estle WARREN, Appellant.
• Court: Iowa Supreme Court

Page 509

212 N.W.2d 509

STATE of Iowa, Appellee, v. Estle WARREN, Appellant.

No. 55853.

Supreme Court of Iowa.

Nov. 14, 1973.

Rehearing Denied Jan. 10, 1974.

Upton B. Kepford, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., David J. Dutton, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, REYNOLDSON, HARRIS and McCORMICK, JJ.

MASON, Justice.

Estle Warren, charged by information with the crime of false pretenses in violation of section 713.1, The Code, 1971, appeals from judgment entered on a jury verdict of guilty.

Defendant organized the Hawkeye Family Security Association in 1965, an Iowa non-profit corporation located in Clear Lake, until it was merged with the Iowa Benevolent Association of Cedar Rapids. The association consisted of various groups of individuals, each group or class distinguished by a type of insurance plan. Defendant solicited and enrolled members for a fee, and upon the death of an enrolled member of a particular group the surviving members of that group were assessed a fee in order to pay a death benefit to any beneficiary designated by the deceased member.

In 1965, defendant, representing himself as Marvin H. Lunbeck, sold Mrs. Clara Hilton of Cedar Falls a membership in one of the association's group plans. In September of 1968 Mrs. Hilton was assessed by defendant for the death of one Harold Hill; believing Hill was a member of her group in the association, Mrs. Hilton mailed defendant a check for the amount of the assessment. Subsequently, similar assessments were paid by Mrs. Hilton for individuals named by defendant as Joe Marchese, Ruth Caldwell and Frank Crappea, always on the belief they were members of the association.

April 28, 1971, defendant was formally accused of falsely representing certain persons as members of the association and assessing surviving members at their death in violation of section 713.1, The Code. In compliance with defendant's request for bill of particulars the State amended the information to specifically charge defendant with defrauding a Mrs. Clara Hilton by falsely assessing her for the death of one Harold Brown Hill and by falsely and fraudulently representing that the said Hill was a member of Hawkeye Family Security Association, which incident the State alleged occurred on September 25, 1968.

Section 713.1, The Code, provides:

'False pretenses. If any person designedly and by false pretense, or by any privy or false token, and with intent to defraud, obtain from another any money, goods, or other property, or so obtain the signature of any person to any written instrument, the false making of which would be punished as forgery, he shall be imprisoned in the penitentiary * * *.'

Evidence was introduced at defendant's trial that he received payments from Mrs. Hilton for the death of Hill, Marchese, Caldwell and Crappea. Membership records of defendant's association received in evidence did not list any of these persons as members of any group plans of the association.

Defendant assigns six errors relied on for reversal contending the trial court erred in: (1) overruling defendant's motion to dismiss the charge of false pretenses pending in Black Hawk County against the defendant for the reason the record established the claimed public offense if committed was entirely committed in Cerro Gordo County and that the proper venue for trial is Cerro Gordo County, Iowa (2) refusing to order return of certain books and records taken from defendant without legal process and arbitrarily withheld from him by the State thus preventing adequate preparation of his defense; (3) overruling defendant's motion for mistrial based on comment by the county attorney that defendant's wife had not taken the witness stand; (4) overruling defendant's motion at the close of the State's case in chief to dismiss and remove certain testimony from consideration of the jury; and (5) admitting certain testimony as to claimed related offenses which was not only prejudicial but irrelevant and immaterial and could in no way or manner be related as required by law. In his final assignment defendant contends he failed to receive a fair trial.

I. Defendant contends the State failed to prove any element of the crime of false pretenses was committed within Black Hawk County where the information was filed against him. He argues venue was in Cerro Gordo County exclusively, inasmuch as the assessment notice was prepared in and mailed from Cerro Gordo County and the check was received and cashed by defendant in that county.

This statement from State v. Hackett, 197 N.W.2d 569, 570 (Iowa 1972) is apposite:

'Venue is a jurisdictional fact put in issue by a plea of not guilty which the State must prove beyond a reasonable doubt as a vital ingredient of any prosecution. 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 territorial jurisdiction of the court in which the criminal charge is filed. * * * (citing authority).'

The State asserts defendant's motion to dismiss for improper venue was untimely and an element of the offense--the false pretense--did in fact occur in Black Hawk County, and therefore the motion was correctly overruled.

Defendant moved to dismiss the case on the ground venue could not be proven after the testimony of Mrs. Hilton and Mr. Beck, the State's first two witnesses. The State believes the motion came too late; that the matter of venue should have been raised before trial. As of July 1, 1973, a defendant must object to the place of trial prior to trial or waive his objection. Section 753.2, The Code, 1973 (effective July 1, 1973). The State urges this enactment merely reflects the common law. It refers this court to its recent holding that a defendant must move for a change of venue when the grounds therefor first become apparent, and not in a motion for new trial. State v. Curtis, 192 N.W.2d 758, 759 (Iowa 1972). Although the statutory right to have a criminal case tried in a particular county may be waived, Lamb v. Davis, 244 Iowa 231, 236, 56 N.W.2d 481, 483, the Iowa court, insofar as has been brought to our attention, has not required a defendant to challenge venue by pretrial motion prior to this enactment.

Defendant here mvoed to dismiss for improper venue immediately after the testimony of the State's witnesses established the unlawful events constituting the offense charged. It would seem the motion was sufficiently prompt to apprise the trial court of the problem to enable it to take corrective action, if necessary.

We turn to the merits of this assignment. In this connection it is deemed advisable to call attention to the fact that section 713.1 consists of two distinct parts, the first relates to the obtaining of money or other property from another person by false pretenses with an intent to defraud. The other portion of the statute concerns a separate offense, the obtaining of the signature of any person to any written instrument the false making of which would be punished as forgery. State v. Pullen, 252 Iowa 1324, 110 N.W.2d 328 and the Iowa decisions relied on in that opinion involve the crime defined in the second part of the statute.

The information here charged commission of the offense specified in the first portion. The material allegations of a charge of such offenses are: (1) the intent to defraud some particular person or people generally; (2) the false pretenses or representations regarding a past or existing material fact; (3) knowledge of the accused of the falsity of his representations at the time he made them; (4) the accomplishment of the intended fraud by employment of such false pretenses; and (5) reliance by the victim upon the false representations in parting with money or other property.

To sustain venue in Black Hawk County it was incumbent upon the State to prove by competent evidence beyond a reasonable doubt that at least one of the foregoing acts necessary to constitute the crime of obtaining money or other property by false pretenses was committed by defendant in that county.

At the time material here section 753.4, The Code, 1971, provided:

'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.'

The record discloses Warren caused a notice of assessment to be forwarded by mail to Mrs. Hilton representing to her Harold Hill was a member of one of the association's group plans and had died. As a surviving member of that group she was assessed a definite amount in order to pay a death benefit to a designated beneficiary. The assessment notice was received by Mrs. Hilton in Cedar Falls, Black Hawk County.

The evidence would justify a finding the representation made by Warren as to Hill's membership in a group plan of the association was false; such representation was calculated and adapted by Warren to mislead and deceive Mrs. Hilton into parting with the amount of money called for by the assessment. There is substantial evidence that Mrs. Hilton, while in Black Hawk County, relied on the false representation and did part with her money.

The trial court did not err in refusing to sustain defendant's motion for change of venue.

II. As his second assignment of error defendant claims he was denied his right to a fair trial under the United States Constitution because the court refused to direct the State to return the association's records in order that defendant could prepare his defense. Before trial some of the records were obtained pursuant to a lawful search warrant, the remainder of the records held by the State was acquired by the State Bureau of Criminal...