#### State of Iowa, Appellee, v. Andrew Schwenderman, Appellant.

CRIMINAL LAW: Venue — Insufficient Evidence. Evidence held •wholly insufficient to establish venue in a charge of forgery.

*Appeal from Wapello District Court.*— Seneca CoRnell, Judge.

October 18, 1921.

*350The defendant was convicted in tbe court below of tbe crime1 of forgery, and sentenced to an indeterminate sentence in tbe penitentiary, and be *appeals.*

Reversed.

*W. W. Epps,*for appellant.

*Ben J. Gibson,*Attorney General, *B. J. Flick,*Assistant Attorney General, and *Newton W. Roberts,*County Attorney, for appellee.

Stevens, J.

The indictment in this case charged tbe defendant with having feloniously indorsed tbe name of “Mike Lemon,” payee named in a check for $37.20, bearing date February 26, 1921, and signed by tbe Ottumwa Supply & Construction Company, by George A. Zika. The indictment lays the venue in Wapello County. At tbe close of tbe State’s evidence, and again at tbe close of all tbe evidence, tbe defendant moved tbe court for a directed verdict, upon tbe grounds that tbe State bad failed to prove tbe venue, or to introduce sufficient testimony to justify a conviction. Both motions were overruled, and these rulings are assigned as error, and relied upon by the defendant for reversal.

Tbe facts upon which the State bases its case are, substantially, as follows: Tbe defendant, Mike Lemon, and Hubert Lemon were employed by-tbe Ottumwa Supply & Construction Company, or George A. Zika, in tbe construction of a road between Bloomfield and Ottumwa., Mike Lemon quit work shortly prior to February 26th. When be quit, bis employer owed him $37.20. Tbe check in question was drawn by tbe bookkeeper of tbe Ottumwa Supply *&*Construction Company and signed by George A. Zika at Ottumwa, on or about February 26th; and some time later, tbe date not shown, it was delivered to Hubert Lemon, to give or forward to his brother, who lived at Sigourney. Tbe defendant and other workmen employed in the construction of tbe road lived at a camp in Davis County. Tbe defendant assisted in tbe work about tbe camp from 7 until 9 o’clock A. M. One of tbe duties assigned to him was to gather up tbe mail each morning, and take it either to a post office' or a mail bos about 50 yards distant — tbe evidence does not disclose which. Hubert *351Lemon testified that be wrote a letter to bis brother, on tbe, evening be received tbe ebeck from tbe paymaster of tbe Ottum-wa Supply '& Construction Company, and inclosed tbe check therewith in an envelope addressed to bis brother, and on tbe following morning, banded tbe envelope containmg tbe cheek to tbe defendant to mail, with other letters lying on tbe table. He further testified that tbe defendant and two other workmen were sitting at tbe table when be wrote tbe letter and inclosed tbe check in tbe envelope. When the check was returned to the. drawer, it bore tbe indorsement of “Mike Lemon” and “ J. Red-man,” together with tbe paid stamp of the Ottumwa Savings Bank, on which it was drawn. Tbe paid stamp of tbe bank bears date March 4, 1921. Tbe defendant worked for tbe Ot-tumwa Supply & Construction Company, and lived at tbe camp until March 19th. Tbe camp was located in Davis County. Tbe various witnesses by their testimony located tbe camp “over in tbe. edge of Davis Coruity,” “on what is known as Big Soap Creek in Davis County, about 300 feet east of tbe present road, ’ ’ “at a camp on Big Soap Creek, Davis County,” “in the edge of Davis County.”

Harry Riseman testified that he indorsed tbe name ‘ ‘ J. Red-man” on tbe back of the ebeck, and obtained tbe money thereon. J. Redman was tbe proprietor of a department store in Ottumwa, where Riseman was employed. Riseman bad no recollection as to who gave him tbe check, nor does tbe evidence show that tbe defendant purchased anything at tbe store prior to March 4, 1921. No one identified him as tbe person from whom tbe check was received. Tbe only direct evidence connecting tbe defendant with tbe commission of tbe offense charged is the testimony of Hubert Lemon that be gave tbe envelope containing tbe check to him to mail, and tbe testimony of the vice-president of one, and tbe cashiers of four other, local banks. These witnesses, after making comparison of tbe writing of tbe name “Mike Lemon,” on tbe back of tbe check, .with tbe same name admittedly written by tbe defendant, testified that, in their opinion, they were written by tbe same person. Tbe original exhibits have been certified to this court. A careful examination thereof reveals a similarity in tbe bandwriting.

The defendant denied that Hubert Lemon gave him tbe.let-*352ter to mail, that be indorsed the name of Mike Lemon on the back thereof, or that he delivered the check to Riseman or to any other person at the Redman Department Store; admitted that he had been previously convicted of a felony.

If the evidence is in dispute, or evidence has been introduced tending to show venue, the question then becomes one of fact for the jury. *State v. Spayde,*110 Iowa 726. Does the record tend to show that the offense was committed in Wapello County, or in Davis County within 500 yards of the Wapello County line? It is true that there was sufficient evidence to justify the jury in concluding that an envelope containing the check was delivered to the defendant at some place in Davis County near the Wapello County line. As to whether the camp where be received the check, or the place where the letters from the camp were mailed, was within 500 yards of the Wapello County line or not, the evidence is very uncertain. Assuming, however, that the jury might have so found, what facts does the record reveal upon which the jury could have based a finding that the offense was committed in Davis County within 500 yards of the line, or in Wapello County? No one saw him have the check in his possession after he received it from Hubert Lemon, if he did so receive it. No one testified that it was received from the defendant at the Redman Department Store. Forgery and uttering a forged instrument are, under our statute, separate and distinct offenses *(State v. Blodgett,*143 Iowa 578), and an indictment charging both offenses is bad for duplicity *(State v. McCormack,*56 Iowa 585).

The difficulties of the county attorney are quite apparent. The State was without evidence that the defendant uttered the forged check. It seems to us that the record wholly fails to show where the offense was committed. It is true, the defendant testified that he worked on the bridge or road until March 19th, but there is no evidence that he did not leave the camp or the road on which he was employed, or that he was not outside of both Davis and Wapello Counties after it is claimed he received the check, and before March 4th, when it was probably received at the department store.

It is our conclusion that, for the reason stated, the verdict of the jury cannot be sustained. No sufficient evidence to prove *353the Tenue was introduced by the.State. It follows that the judgment of the court below must be and *is*— Reversed.

Evans, C. J., Akthus and Faville, JJ., concur.