State v. Clemenson
| Decision Date | 11 April 1904 |
| Citation | 99 N.W. 139,123 Iowa 524 |
| Parties | STATE OF IOWA v. WILLIAM CLEMENSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Hancock District Court.--HON. CLIFFORD P. SMITH, Judge.
THE defendant, with two others, was indicted for the crime of having entered into a conspiracy to commit adultery. From judgment of conviction, he appeals.
Reversed.
Wesley Aldridge and Jno. A. Senneff for appellant.
John Hammill for the State.
The appellant contends there is no such crime as conspiracy to commit adultery. The statute provides that "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." Section 5059, Code. As adultery may be punished by imprisonment in the penitentiary, it is a felony. Section 5093, Code. And contrary to appellant's suggestion, it is an offense against the state as well as against the innocent spouse. State v. Corliss, 85 Iowa 18, 51 N.W. 1154; State v. Smith, 108 Iowa 440, 79 N.W. 115. The requirement that the prosecution must be commenced on the complaint of the husband or wife pertains to the procedure only. Such complaint is not an element of the offense. State v. Donovan, 61 Iowa 278, 16 N.W. 130; State v. Maas, 83 Iowa 469, 49 N.W. 1037. That it has not been made may operate to withhold authority to prosecute or punish, but this does not affect the question of the actual guilt of the offending party. Nor is the consent of the female essential to constitute the crime. State v Sanders, 30 Iowa 582; State v. Donovan supra; State v. Savoye, 48 Iowa 562; State v. Grant, 86 Iowa 216, 53 N.W. 120. As adultery is a felony, then, and may be committed without the consent of the female, and regardless of whether any prosecution is commenced, there is no ground for saying that the offense may not be the subject of conspiracy. This case is readily distinguishable from Shannon v. Com., 14 Pa. 226 and Miles v. State, 58 Ala. 390. In those decisions the agreement of a married woman to have intercourse with a man other than her husband was held not to amount to a conspiracy to commit adultery, for that the consent involved was a part of the offense itself. One may aid and abet in adultery without actually participating in the act. State v. Henderson, 84 Iowa 161, 50 N.W. 758. And we can discover no ground for saying that a combination to commit the unlawful act, not an agreement between the immediate parties to the intended crime, may not constitute a conspiracy.
II. The indictment did not allege that the defendant had knowledge that Helen E. Brown was a married woman, nor do we regard this as essential. The gist of the offense is the wicked and unlawful agreement. State v. Savoye, 48 Iowa 562; State v. Grant, 86 Iowa 216, 53 N.W. 120. And where this is to perpetrate a crime known to the common law, or defined by the statute in unmistakable terms, all that is necessary is to designate the offense, without describing the overt act accomplished in pursuance of the conspiracy. State v. Potter, 28 Iowa 554; State v. Savoye, supra; State v. Ormiston, 66 Iowa 143, 23 N.W. 370; State v. Grant, supra; State v. Soper, 118 Iowa 1, 91 N.W. 774. See State v. Stevens, 30 Iowa 391. It may be that there could be no conspiracy to commit such an offense without knowledge of the status of the woman, but, if so, this was necessarily included in the allegation that the combination was to perpetrate that particular crime.
III. The court instructed the jury that, unless defendant knew that Helen E. Brown was a married woman, he should be acquitted. Appellant insists that the evidence was not sufficient to support the verdict. At the...
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Iannelli v. United States 8212 64
...commission of the substantive offense. See 1 R. Anderson, Wharton's Criminal Law and Procedure § 89, p. 193 (1957); State v. Clemenson, 123 Iowa 524, 526, 99 N.W. 139 (1904). The rationale supporting this exception appears to be that the addition of a third party enhances the dangers presen......
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People v. Davis, Docket No. 60034
...States, 156 F. 897, 903-905 (CA 8, 1907); Old Monastery Co. v. United States, 147 F.2d 905, 907-908 (CA 4, 1945); State v. Clemenson, 123 Iowa 524, 99 N.W. 139 (1904). But see United States v. Sager, 49 F.2d 725 (CA 2, 1931); United States v. Hagan, 27 F.Supp. 814 (W.D.Ky., 1939); People v.......
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United States v. Hunter
...whether or not the conspiracy charged depends on proof of an element which is not a part of the substantive offense. State v. Clemenson, 123 Iowa 524, 99 N.W. 139 (1904), which is sometimes cited as an example of the "third person" exception to Wharton's Rule, actually sustained a conspirac......
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Robinson v. State
...the rule does not apply. Vannata v. United States, 289 F. 424 (C.C.A., 2d); 2 State v. Lennon, 3 N.J. 337, 70 A.2d 154; State v. Clemenson, 123 Iowa 524, 99 N.W. 139; Old Monastery Co. v. United States, 147 F.2d 905 (C.C.A., 4th), cert den. 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. A further limi......