On the 23d day of September, 1931, the grand jury of Harrison county returned the following indictment against the defendant:
"The Grand Jurors of the County of Harrison in the name and by the authority of the State of Iowa accuse C.W. Huff of the crime of embezzlement and charge that the said C.W. Huff while county treasurer of Harrison County, Iowa, did then and there embezzle and convert to his own use $4,251.80, then and there money that came into his hands during the year 1929 and 1930 by virtue of his office as county treasurer of Harrison County, Iowa, which said sum the said C.W. Huff as county treasurer failed to account for, in the county and state aforesaid."
On January 18, 1932, defendant having entered a plea of not guilty, a jury was drawn and sworn, and the trial of the case began. At the close of the state's testimony, defendant moved the court to require the state to elect on which particular embezzlement it would proceed. This motion was sustained, and the state thereupon elected to stand on a transaction of July 7, 1930, with the First National Bank of Woodbine involving an amount of $620.62. The case was submitted to the jury as to this item, and the jury returned a verdict of guilty. On further procedure in the case, a motion for a new trial was sustained, and, when the case was again called for trial, defendant pleaded a former adjudication as to all items involved, except the aforesaid item of $620.62. As the second trial proceeded, the defendant offered to introduce the necessary evidence to support his plea of former adjudication, and, over objection of the state, the court ruled that no such evidence was admissible; thereby refusing the defendant the right to introduce the necessary evidence to *Page 52 support his plea of former adjudication. This ruling is one of the errors assigned.
On the refusal of the court to permit the defendant to introduce his evidence supporting the plea of former acquittal, the defendant requested the court to withdraw from the consideration of the jury all of the transactions shown in evidence by which it was claimed said funds were embezzled by the defendant, other than the transaction of July 7, 1930, being the amount of $620.62 on which the first jury had convicted him. The court refused so to do.
To a full understanding of the questions involved, the fact situation, as shown by the record, is as follows:
Fifteen different transactions on various dates between January 8 and December 31, 1930, were introduced in evidence. The first alleged embezzlement occurred January 8, 1930, and is known in the record as "the transaction with the First National Bank of Logan for $800"; the next transaction occurred on July 7, 1930, for $620.62, known as the "transaction with the First National Bank of Woodbine"; the other various transactions occurred respectively on August 12, 1930, two transactions on August 28, 1930, one on November 17, 1930, one on December 16, 1930, and two on December 31, 1930. Four other additional items were referred to in the evidence, but later withdrawn by the state, amounting to $905.35. Evidence of each and all of these different transactions was introduced on the part of the state at the first trial, and, as above explained, on motion to elect, the state elected to proceed on the item of July 7, 1930, of $620.62, and withdrew all other items from the jury, and limited the jury to the one item above indicated.
On the second trial, the defendant, by proper proceedings, requested that the court submit the case only as to the one item or transaction of July 7, 1930. The court overruled this request and submitted the case to the jury on all items except the four, which, in the first trial, were withdrawn from the jury by the state, and the last jury found the defendant guilty as above stated, on the one item of $800, being the item of January 8, 1930. This item was an item which, under the election of the state in the first trial, was not submitted to the first jury. The defendant made the proper and timely offer of the various lines of testimony which, as a legal proposition, would support his plea of a former adjudication, providing such plea were available to him. As already indicated, the indictment herein charges a lump sum embezzlement. The evidence, however, *Page 53 as above indicated, tends to show various completed embezzlements on various different dates.
In the case of State v. Berg, 200 Iowa 628, 204 N.W. 441, we had a similar indictment in which the charge alleged was against the bailiff of the municipal court for an alleged embezzlement of $500.86. The evidence in that case, which was similar to the record in this case, showed various different items of embezzlement on various different dates. We there said:
"But where the only proof of a failure to account is to be found in the failure to pay over each month fees collected during the preceding month, such failure to account would relate only to the fees collected during such preceding month which were not paid over; and such conversion of and failure to account for, the fees of each month would constitute a separate offense; and an election by the state would properly have been required. The failure to account each month was only a failure to do the thing then required, which was to pay over the fees collected during the preceding month. The indictment alleged that money collected by a series of acts was embezzled."
In other words, the rule, as I conceive it to be and as outlined in the Berg case, supra, is that, where the embezzlement is charged in the indictment in a lump sum and the evidence shows individual transactions upon any one or all of which the defendant might be convicted, he stands in the position of having as many charges covered by the indictment as shown by the different transactions. In other words, this defendant, after having a jury drawn and sworn and evidence taken showing fourteen different separate transactions, — on any one of which he could have been found guilty, — was, therefore, in jeopardy on each and all of such transactions. The court, by its withdrawal of the thirteen transactions from the jury, limited the jury in its decision to the one transaction, and the question is whether or not, as to the thirteen transactions withdrawn, the defendant had been so in jeopardy as to entitle him to rely upon his plea of former acquittal.
In the case of State v. Severson, 79 Iowa, 750, 45 N.W. 305, the defendant was informed against in the justice court, the information containing four counts charging separate offenses. On the trial in the district court the justice entered a judgment finding the defendant guilty on one count only, and named the count "count *Page 54 1". The case was appealed, and, on the trial in the district court, the defendant was put on trial as to all of the counts. This court held that the legal inference to be drawn from the finding and judgment of the justice court was that, while he was guilty on count 1, he was not guilty on counts 2, 3, and 4. We there said:
"As a legal inference the defendant stood acquitted before the justice of the information except count 1. In the district court he was acquitted of count 1, and hence he stands acquitted of the entire information."
In 16 C.J. 260, section 434, it is said that, where the accused has been found guilty on one of the several counts, and the verdict is silent as to the others, and he obtains a new trial, he can be prosecuted only for the crime of which he was found guilty, and may plead a former acquittal as to the other counts. The note cited under this text shows this is quite the universal rule.
This rule may be criticized as not applying to the situation we have before us, because, in the present indictment, there was but one count. However, we conceive that the situation would be no different in the present indictment than it would have been had there been fifteen different counts in the same indictment.
On a careful search of the authorities I have been able to find but one case where this identical situation arose, that is, the case of Schultz v. State, 135 Wis. 644, 114 N.W. 505. In the original submission of that case the court disposed of the matter in a cursory way, saying:
"The indictment contains but one count, though several violations of the statute are alleged in the conjunctive; hence the motion to compel the state to elect was properly denied."
Later this case was before the Wisconsin court on rehearing, and this question is elaborately discussed and the authorities collated. See 135 Wis. 653, 116 N.W. 259. The court there said:
"There can be no doubt but that the defendant was in jeopardy when he was put upon his trial upon a valid information, before a jury duly impaneled and charged with his deliverance. [Citing cases.] The question before us, however, is, `Has the accused been put in jeopardy as to the first charge so as to preclude a new trial as to it?' In other words, has defendant by his motion for a new *Page 55 trial waived the jeopardy and opened the case for a trial on the first charge? The motion for a new trial was clearly one upon the charge of which defendant was convicted, not upon the one upon which he was acquitted. [Citing cases.] Cases may be found holding that where the same offense is set up in different counts, as for example where one count charged defendant with killing deceased with a gun, and another count charged the killing with a pistol, and there was a conviction upon one count only, a new trial opened the case upon both counts. Brown v. United States, 2 Ind. T. 582, 52 S.W. 56. And when the different counts are simply formal variations in stating the same offense, then the granting of a new trial opens the whole case, and the defendant may be put upon his trial and convicted on any of the counts. [Citing cases.] But the rule of such cases is not applicable to the case before us, because here we have two separate and distinct offenses charged in the information. The one a threat to charge with the commission of a crime or offense, and the other a threat to do an injury to the person, property, business or calling of another, coupled with an unlawful intent in each case. * * * We conclude that the third question must be answered in the affirmative, and therefore the prisoner should be discharged."
In the Schultz case, the defendant was charged under the indictment with two crimes in one count, and he moved that the state be required to elect upon which part of the indictment it would prosecute. The motion was overruled. The court, however, by its instructions, removed from the consideration of the jury the first charge, and the verdict was returned against the defendant on the second charge in the indictment.
In the case at bar, the action of the prosecuting attorney, in response to the ruling of the court in electing to stand on the item of July 7th, amounted to a discontinuance of all charges against him, except the one selected by the state. Up until that time the defendant was in jeopardy as to all of the charges because the state had the right to elect to prosecute on any one of said charges, and the defendant would not know which one was to be sent to the jury until the election was made by the state. On the other hand, the refusal of the court to submit the thirteen charges to the jury, and instructing accordingly, amounted to a direction by the court to acquit on those thirteen charges, and, regardless of how erroneous *Page 56 the ruling of the court may have been, it would bar a subsequent prosecution on the same charges. See 16 C.J. 256, section 415 and note.
The state contends that, as there was no judgment entered as to these thirteen items, it does not amount to an acquiescence. It is to be said that section 12, article I, of the Constitution, reads as follows:
"No person shall after acquittal, be tried for the same offence. All persons shall, before conviction, be bailable, by sufficient sureties, except for capital offences where the proof is evident, or the presumption great."
Under this section, all that is necessary to make a former adjudication is the acquittal, however it may come about, and the failure of the clerk to enter judgment on the verdict of the acquittal does not affect its validity as a bar to subsequent prosecution. Ball v. U.S., 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300; Wright v. Fansler, 90 Ind. 492; State v. Norvell, 2 Yerg. (10 Tenn.) 24, 24 Am. Dec. 458.
Dispute arose between counsel as to the section of the statute under which this indictment was drawn. As I read the same, section 13027 (Code 1931) is the section under which this indictment falls, and section 13029 has no application to the case before us. Section 13032, covering money converted by series of acts, was formerly a part of section 13031 covering embezzlement by agents, and has no application to the indictment under section 13027, and we so held in the Berg case, supra.
It is my conclusion that the court should have permitted the defendant to introduce his testimony in support of his plea of a former adjudication, and, if the same were sustained, it could only have been sent to the jury on the question of his guilt as to the item of July 7, 1930, of $620.62. As the case was tried, this item went to the jury, together with all the other items in the case, and the jury found the defendant guilty on an $800 item only which was separate and distinct from the item of July 7, and thereby, under the rules heretofore laid down, he was acquitted of the item of July 7.
The only thing left in the case, therefore, is whether or not the evidence offered by the defendant to support his plea of a former adjudication was sufficient to sustain the same. I think the evidence *Page 57 offered does sustain the plea, and, having reached this conclusion, there is nothing left in the case to be tried.
I would reverse and remand.
CLAUSSEN, J., joins in this dissent.