State v. Blackledge

Decision Date24 June 1932
Docket Number40979
Citation243 N.W. 534,216 Iowa 199
PartiesSTATE OF IOWA, Appellee, v. H. E. BLACKLEDGE, Appellant
CourtIowa Supreme Court

REHEARING DENIED MAY 15, 1933.

Appeal from Polk District Court.--O. S. FRANKLIN, Judge.

The defendant was convicted of the crime of conspiracy and appeals from the judgment entered against him.

Affirmed.

John Fletcher, Attorney-general, Carl S. Missildine, County Attorney, and Alexander M. Miller, for appellee.

C. B Hextell and John L. Gillespie, for appellant.

STEVENS J. EVANS, FAVILLE, ALBERT, MORLING, KINDIG, and DE GRAFF, JJ., concur. GRIMM, J., (dissenting).

OPINION

STEVENS, J.

The indictment in this case, to which a demurrer was interposed and overruled by the court, is as follows:

"The said J. A. Lowenberg and H. E. Blackledge, and other person and persons whose names are to this Grand Jury unknown, on or about the month of April and the month of May, A. D. 1927, in the county of Polk in the State of Iowa, did wilfully and unlawfully conspire, combine and confederate together with the fraudulent and malicious intent to injure the property and funds owned and accumulated by the Grand Lodge Ancient Order of United Workmen of Iowa, and with the fraudulent and malicious intent to injure the rights of persons having an interest in said property and funds.

"Count II. And the Grand Jury of the County of Polk, in the State of Iowa, being legally impanelled, sworn and charged in the name and by the authority of the State of Iowa, with no intent or purpose on the part of said Grand Jury of charging any offense or crime other than the offense charged in Count I above, but solely to meet the testimony, further alleges:

"That the said J. A. Lowenberg and H. E. Blackledge and other person or persons whose names are to this Grand Jury unknown, on or about the month of April and the Month of May, A. D. 1927, in the County of Polk in the State of Iowa, with the fraudulent and malicious intent to injure the property and funds owned and accumulated by the Grand Lodge Ancient Order of United Workmen of Iowa, which property and funds were owned and accumulated for the benefit of persons holding the Lodge's certificates and contracts of insurance, and which property and funds were owned and accumulated for the purpose of paying claims to the beneficiaries of said certificates and contracts of insurance, and with the fraudulent and malicious intent to injure the rights of said holders and beneficiaries who had an interest in said property and funds, did wilfully and unlawfully conspire, combine and confederate together for the wrongful and fraudulent purpose of diverting $ 15,000.00 of the said property and funds into a note or bond secured by a mortgage on real estate described as: * * * which real estate was not worth at least double the amount loaned, and for the wrongful and fraudulent purpose of converting $ 3,690.00 of the said $ 15,000.00 to the use and benefit of the said J. A. Lowenberg and H. E. Blackledge and other person and persons above mentioned whose names are to this Grand Jury unknown. * * *"

The indictment in this case is based upon section 13162 of the Code of 1927 which is as follows:

"If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the person, character, business, property, or rights in property of another, or to do any illegal act injurious to the public trade, health, morals, or police, or to the administration of public justice, or to commit any felony, they are guilty of a conspiracy, and every such offender, and every person who is convicted of a conspiracy at common law, shall be imprisoned in the penitentiary not more than three years."

The propositions urged upon which it is claimed the demurrer to the indictment should have been sustained briefly summarized are as follows: that Count I of the indictment fails to state or charge the acts or omissions complained of in ordinary and concise language and with such certainty as to apprise the defendant of the offense charged; that the two counts of the indictment considered separately or together do not charge a conspiracy to commit a criminal offense nor are the means alleged by which the defendant with others conspired to accomplish his design criminal in character.

The propositions stated will be discussed together. Count I of the indictment is substantially in the language of the statute. This, ordinarily, is sufficient. As the indictment must be sustained upon other grounds, we shall not give particular consideration to this phase of the question raised. We, however, desire in this connection to call attention to section 13902 of the Code, which is as follows:

"Upon a trial for conspiracy, a defendant cannot be convicted unless one or more overt acts alleged in the indictment are proved, when required by law to constitute the offense, but other overt acts not alleged in the indictment may be given in evidence."

There is a decided lack of harmony in the various jurisdictions of this country as to the principal question raised by the demurrer and it must be confessed that our own cases are in more or less confusion. There can be no doubt as to the rule established by this court in State v. Jones, 13 Iowa 269, and State v. Stevens, 30 Iowa 391. In the first of the above cases we said:

"They hold, for instance, that it should appear on the face of the indictment, that the object of the conspiracy is a criminal one, or else, if the purpose thus disclosed does not import a crime, then other facts should be alleged and set forth, so as to show that the means to be employed are criminal, thereby withdrawing the crime of conspiracy from the limitless field of wrongful acts, where the old authorities had allowed it to go, to the more circumscribed range of the criminal Code, either as a means or an end. This brings both elements of this compound offense, to wit: the combination and the injury contemplated, under the clear and more certain control of the courts."

In the latter case, the rule was clearly stated as follows:

"It has been settled by this court, after a full examination of the English and American authorities, that an indictment for conspiracy must show on its fact 'that the object of the conspiracy is a criminal one, or else, if the purpose thus disclosed does not import a crime, then other facts should be alleged and set forth, so as to show that the means to be employed are criminal'."

The holding in the above cases was recognized and apparently sanctioned in State v. Potter, 28 Iowa 554. There is, however, some departure from the prior holding indicated by the language of the court in this case. We quote briefly:

"In order to constitute the crime of conspiracy, the accused must confederate together to do a criminal act, or an act that is not criminal, by illegal means. * * * This act (charged) was the means intended for the accomplishment of their designs. It is not shown to be of itself criminal, nor is it avowed to be unlawful."

The decision of the court in State v. Harris & Folsom, 38 Iowa 242, is out of harmony with the preceding cases. The means alleged in the indictment in that case was the use of a writ of replevin to accomplish an illegal purpose. None of the foregoing cases are cited or referred to in the majority opinion in this case. The opinion in State v. Stevens, supra, was written by Justice Miller who, obviously interpreting the opinion in State v. Harris & Folsom as a complete departure from the rule announced in the Stevens case, filed a dissent in which he clearly pointed out that such was the case. Again, discussing an indictment alleged by the defendant to be insufficient to charge a conspiracy, the court in State v. Ormiston, 66 Iowa 143, 23 N.W. 370, 372, said:

"Another objection urged is that the indictment does not set out the means which the defendant intended to employ. It was held in State v. Potter, 28 Iowa 554, that where the intended act is not criminal, the indictment should charge with what means the act was to be done. But in the case at bar the intended act was criminal. The conspiracy alleged was to wrongfully injure the person of Blanchard. It is true that to wrongfully injure the person of another is not necessarily more than a misdemeanor, but it is at least that; and in our opinion an indictment which charges a conspiracy to commit such injury need not charge the means by which it was to be done."

It will be observed that the court in this case sustained an indictment which charged a conspiracy to commit a misdemeanor. The indictment involved in State v. Grant, 86 Iowa 216, 53 N.W. 120, 121, charged a conspiracy to commit a crime. The indictment was sustained. The court, in the course of the opinion, said:

"It is said that the indictment is defective, in that it fails to fully disclose the means by which the crime was to be accomplished. It is well settled in this state, and is the law in many states, that, where the indictment charges a conspiracy to do an act which is a crime, it is sufficient if it be described by the proper name or terms by which it is generally known in law. It is only where the charge is that an act in itself not criminal is sought to be accomplished in an illegal manner, or by illegal means, that the means used for its accomplishment must be averred."

The court in State v. Soper, 118 Iowa 1, 91 N.W. 774, 776, without specifically recognizing the rule of State v. Stevens, supra, and other like cases, said:

"Where the conspiracy is charged to have consisted in the agreement to do an act not in itself criminal by illegal means, then the illegal means contemplated must be described; but, where the offense consists in the...

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