State v. Loucks , 28 Ohio App. 2d 77 ( 1971 )

I am not persuaded that the defendant herein is precluded, as a matter of law, from consideration by this court of the sufficiency of the evidence to establish venue in the trial court.

Thomas Loucks was charged in the Gallia County Common Pleas Court upon an indictment which provides in its material parts the following:

"* * * that Thomas Loucks * * * on the 5th day of January in the year of our Lord one thousand nine hundred and seventy at the County of Gallia aforesaid, then and there being, did, with intent to defraud, falsely make, forge and counterfeit a certain check of the purport and value as follows, to-wit:

"Gallipolis, Ohio Jan. 5, 1970 No. "The Ohio Valley Bank Co. Pay To the Order Of Bonded Gas $15.00 Fifteen . . . . . . . . . . . . . . . . . Dollars For Gas "Monroe Sanders

and, with like intent to defraud did utter and publish as true and genuine said forged and counterfeited check, knowing it to be forged and counterfeited."

Upon a plea of not guilty, trial was had to a jury and a verdict of guilty returned. Sentence was imposed and a timely filed motion for new trial was subsequently overruled. Leave to appeal was granted by this court, and following are two of the four errors assigned:

"Assignment of error number one

"The court erred in finding the defendant guilty despite the fact that no venue was proved.

"Assignment of error number three

"The judgment and finding of the court is not sustained by sufficient evidence."

The majority opinion states the offense charged to be that of "uttering and publishing with intent to defraud a check which he knew to be forged and counterfeited. The indictment is drawn under R. C. 2913.01. Such section sets forth two separate and distinct offenses, the first of forgery of a check, or other instrument, and the second of uttering or publishing as true a forged check, or other instrument, both offenses requiring an intent to defraud. Barker v. State (1964), 328 F.2d 582. This distinction between such separate offenses is carefully drawn by the standard Ohio criminal practice form books. Baldwin's Ohio Criminal Practice forms 13.01 through 13.06; Schneider's Ohio Criminal Code, forms 108 and 109. A defendant may properly be charged with both offenses in separate counts of the same indictment. See State v. Atkinson (1965), 4 Ohio St. 2d 19.

The obvious difficulty presented by this indictment is that it appears to charge both offenses in one count. An examination of the record reveals no question was raised at any point in the proceedings as to the nature of the offense charged. A further handicap is that the fact that the trial court's charge to the jury is not included in the record. Likewise, the form of the verdict of guilt returned by the jury provides "in manner and form as he stands charged in the indictment," although we note it is captioned at the top "Indictment for Forgery." The sentence was upon a single charge.

The briefs appear to be prepared on the basis that forgery alone was charged, I assume, therefore, that forgery alone was charged and review on that basis. In any event, whether the prosecution was on one or both charges, in my view the outcome of this appeal should be the same.

In any consideration of the problem of venue in a criminal prosecution in Ohio, it is necessary that fundamental principles be borne in mind.

Section 10, Article I of the Ohio Constitution, provides, in part, where imprisonment in the penitentiary may be a part of the penalty, that an accused has the right to "a speedy public trial by an impartial jury of the county in which the offense is alledged to have been committed."

Judge Fess, in State v. Tannyhill (1956), 101 Ohio App. 466, has stated in this respect, the following:

"The Constitution of Ohio declares that the right of trial by jury shall be inviolate (Section 5, Article I) and that in any trial in any court the accused has a right to be tried by an impartial jury of the county in which the offense is alleged to have been committed (Section 10, Article I, Constitution). The sole purpose is to guarantee the perpetuity of the institution of trial by jury as it had long existed at common law (Inwood v.State, 42 Ohio St. 186; Belding v. State, ex rel. Heifner,121 Ohio St. 393, 169 N.E. 301) and thus preserved all its benefits to the accused in all criminal cases. Work v. State, 2 Ohio St. 296, 59 Am. Dec. 671. Accordingly, it is beyond the power of either the courts or the General Assembly to abridge or impair this right. Work v. State, supra; Simmons v. State, 75 Ohio St. 346,79 N.E. 555; Hoffman v. State, 98 Ohio St. 137,120 N.E. 234; Helber v. State, 37 Ohio App. 333, 174 N.E. 804; State, exrel. Hartinger, v. Court of Common Pleas, 84 Ohio App. 241,86 N.E.2d 810."

The Ohio Supreme Court has rejected the contention that since Section 4, Article IV of the Ohio Constitution then in effect granted jurisdiction to Common Pleas Courts as provided by law (the 1968 revision continuing such provision, with a limitation as to review authority), such broad grant of jurisdiction defining the kind and character of causes which may be heard by the Common Pleas Courts allowed the General Assembly to place venue in a county in contravention of Section 10, Article I.State v. Chalikes (1930), 122 Ohio St. 35. It is, therefore, necessary not only that the indictment allege the offense to have occurred in the county of trial (Knight v. State (1896),54 Ohio St. 365; State v. Chalikes, supra), but that proof be adduced by the prosecution that the offense occurred in the county to give the trial court jurisdiction of the particular offense then before it. The second paragraph of the syllabus of State v.Nevius (1947), 147 Ohio St. 263, provides:

"A conviction may not be had in a criminal case where the proof fails to show that the crime alledged in the indictment occurred in the county where the indictment was returned."

See, also, State v. Domer (1964), 1 Ohio App. 2d 155; 15A Ohio Jurisprudence 2d 373, Section 151.

It would appear, therefore, that the majority view that venue in a criminal case is merely a personal waiveable privilege by an accused going only to jurisdiction of the person, is an over simplification, at least in Ohio, since authority to adjudicate is dependent upon an allegation of commission of the offense in the county in which the trial court sits, together with proof of such allegation.

The defendant herein pleaded not guilty. The plea of not guilty puts in issue every essential allegation of the offense charged and imposed upon the state the burden of proving each material allegation, beyond a reasonable doubt. See 15A Ohio Jurisprudence 2d 402, Section 197. The allegation as to venue, being a material allegation, was thus placed in issue below. The burden of the prosecution upon venue is, in Ohio, proof beyond a reasonable doubt. State v. Dickerson (1907), 77 Ohio St. 34.

The venue of the offense of forgery is in the county where the check was forged, and, in the offense of uttering and publishing a forged check, the county where the uttering occurred. Lindsey v. State (1882), 38 Ohio St. 507.

The difficulty of proof of venue in forgery cases is noted inCole v. State (1963), 232 Md. 111, 116, 194 A.2d 278, wherein it is stated:

"* * * The 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 Anno. 164 A. L. R. 621, 649-660. Justice Story long ago pointed out this difficulty in the case of United States v. Britton, 24 Fed Cas. 1239, 1241, No. 14, 650. 2 Mason 464 (1822), wherein he stated `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 rare that the government can offer any evidence of the place of the forgery, except that which arises from the fact of 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 the defendant's possession or uttering of the forged instrument. Thus it has been said that `when a forged instrument is uttered, or attempted to be uttered, it is presumed prima facie to have been forged in the county where it is so uttered, or the attempt made,' State v. Douglas,278 S.W. 1016, 1022. (Mo. 1925.) See also Commonwealth v. Leib,76 Pa. Super. 413 (1921), and cases cited. * * *

"* * *

"Other courts have recognized a similar presumption from the fact of the defendant's possession of the forged instrument. Thus it was said in Spencer v. Commonwealth, 2 Leigh 751 (Va. 1830), that `possession of a forged instrument is prima facie presumptive proof that the forgery was committed at the place where such possession was first made known.' See also Nix v.State, 20 Okla. Crim. Rev. 373, 202 P. 1042, 26 A. L. R. 1053 (1922). Other authorities are not willing to state the proposition as a presumption of law but say that in the absence of other evidence, possession or uttering of a forged instrument by the defendant within the jurisdiction of the court is `strong evidence' that it was forged therein. People v. Winthrop, Pac. 263 (Cal.App. 1928), and cases cited. Cf. Conley v. UnitedStates, 23 F.2d 226 (1928), and People v. Adams, 132 N.E. 765 (Ill. 1921). Of course, even when the various presumptions are recognized, they can be overcome by evidence or circumstances to the contrary, United States v. Britton, supra."

There appears to be no Ohio case in point with these authorities. The rationale of the above authorities is, however, persuasive. Another important principle in criminal law with respect to venue is that venue need not be proved by express testimony, it being only necessary that the venue be proved by all the facts and circumstances in the case beyond a reasonable doubt. State v. Dickerson, supra (77 Ohio St. 34).

The bill of exceptions is short, consisting of 58 pages. It has been read and re-read in light of the venue requirement. I conclude, first, that the record is insufficient to predicate a presumption that the forgery was committed in Gallia County based upon an uttering and publishing in that county. Ivan Lee Beaver testified that he operated the service station and that it was at such place the check was presented to him. The residence address of Beaver is in the record, the location of the station is not. While there are references of "going up to the Bonded Service Station," without further explanation "going up" is meaningless.

Without reference to the presumption, one can only conclude that the evidence in this record is insufficient to justify a finding, beyond a reasonable doubt, that the offense occurred in Gallia County.

The defendant testified and claimed the check to be written by a third person and that such person wrote the check while sitting in an automobile outside of "Circle's Restaurant." The location of the restaurant is not further identified.

Reliance is placed by the state upon defendant's testimony that after "going up to the Bonded Station" he went to Huntington and then was "coming back to Gallipolis." While such statement may arguably have some evidentiary value, it is clearly not sufficient upon which to predicate a finding of venue beyond a reasonable doubt. In State v. Trantham (1969), 22 Ohio App. 2d 187, the court, in reversing for insufficiency of proof of venue, noted:

"The only evidence presented in this case in relation to venue is that the alleged crime was committed in a house next to Siebert Apartments in Perintown on U.S. Route 50. There is no evidence that Perintown, the house, Siebert Apartments or U.S. Route 50 is in Clermont County or the state of Ohio."

Unless there is a waiver herein of proof of venue, as found by the majority, the only reasonable conclusion that can be drawn from the whole of the evidence herein and the inferences fairly flowing therefrom is that it is insufficient to support a finding beyond a reasonable doubt with respect to venue, and the judgment must be vacated and reversed.

My colleagues find a waiver of venue in (1) a failure to make a motion for a directed verdict and (2) failing to complain as to venue in the motion for a new trial. With respect to the latter the record discloses that one ground of the motion for a new trial, overruled by the trial court, was that the judgment was not sustained by sufficient evidence.

Since the jurisdiction of the court to render a valid judgment is dependent on proof of venue, I cannot perceive how the failure to make a motion for a directed verdict is either an admission of venue or a waiver of such proof. Concededly, counsel by failing to make such a motion, which involves no weighing of the evidence, waives the right to claim, on appeal, that a directed verdict should have been entered but that and that only is waived. The question here is the sufficiency of the evidence upon the issue of venue and, as such, bears no relationship to a directed verdict. See Rohde v. Farmer (1970),23 Ohio St. 2d 82.

R. C. 2945.79 provides statutory grounds for a new trial, and under paragraph (D) is the following:

"That the verdict is not sustained by sufficient evidence or is contrary to law * * *."

It should be observed that the statute does not require a specification as to what aspect of the case the evidence is insufficient to sustain the judgment.

The Ohio Supreme Court has stated in Poske v. Mergl (1959),169 Ohio St. 70, that in passing upon a motion for a new trial upon the ground that the judgment is not sustained by sufficient evidence, it is the duty of the trial court to review theevidence adduced during the trial, to pass upon the credibilityof witnesses and weigh the evidence. As noted above, such a motion was filed in this case. Proof of venue is one of fact. McConnaughy v. Alvis (1955),100 Ohio App. 245. It is immaterial whether, as has been held, that venue is a material element of every criminal offense (Keener v.State (1933), 15 Ohio Law. Abs. 290), it is at least an issue in every criminal case requiring proof.

It should also be noted that even if a motion for a new trial had not been filed, the weight or sufficiency of the evidence in a criminal case is still reviewable on appeal. R. C. 2945.831. The evident purpose of this section, and its counterpart in civil matters, R. C. 2321.01, was to obviate the line of decisions requiring a motion for a new trial upon that ground before the issue could be raised on appeal.

Hence, the conclusion of the majority opinion that venue is waived because the motion for a new trial did not specify that the evidence was insufficient as to the issue of venue loses its force since the sufficiency of evidence upon the issue of venue, or any other issue in the case, can be raised upon review without any motion for a new trial.

I would reverse.