State v. Crofford

• Decision Date: 05 March 1907
• Citation: 133 Iowa 478,110 N.W. 921
• Parties: STATE v. CROFFORD.
• Court: Iowa Supreme Court

133 Iowa 478

110 N.W. 921

STATE

v.CROFFORD.

Supreme Court of Iowa.

March 5, 1907.

Appeal from District Court, Clarke County; H. K. Evans, Judge.

The defendant was convicted of the crime of murder in the second degree, and appeals. Affirmed.V. R. McGinnis and Temple, Hardinger & Temple, for appellant.

Chas. W. Mullan, Atty. Gen., Lawrence De Graff, Asst. Atty. Gen., and J. S. Banker, County Atty., for the State.

LADD, J.

As the facts were fully stated on the former appeal (121 Iowa, 395, 96 N. W. 889), it will be enough now to advert to the circumstances briefly. Maude Stone entered the defendant's sanitarium January 22 or 23, 1901, and remained there until her death, six or seven days later. The charge is that she died as a result of an abortion unnecessarily produced by the defendant. The theory of the state is that this was done in pursuance of a conspiracy between the doctor, Ira Hammond, and Maude Stone. Appellant insists that the victim of an abortion cannot be a conspirator to commit it. Section 4759 of the Code defines the offense by saying that “if any person with intent to produce the miscarriage of any pregnant woman, wilfully administer to her any drug or substance whatever, or, with such intent, use any instrument or other means whatever, unless such miscarriage shall be necessary to save her life,” he shall be punished accordingly. This language indicates the design of the lawmakers to treat the woman upon whom the act is perpetrated as the victim, and she cannot be guilty of this crime. Hatfield v. Gano, 15 Iowa, 177;Abrams v. Foshee, 3 Iowa, 274, 66 Am. Dec. 77. This is in harmony with the conclusion reached by courts generally that she is not to be regarded as an accessory or accomplice. State v. Smith, 99 Iowa, 26, 68 N. W. 428, 61 Am. St. Rep. 219;Moore v. State, 40 S. W. 287, 37 Tex. Cr. R. 552;People v. McGonegal, 32 N. E. 616, 136 N. Y. 62; State v. Hyer, 39 N. J. Law, 598; Commonwealth v. Brown, 121 Mass. 69;State v. Owens, 22 Minn. 238;Note to Abrams v. Foshee, 66 Am. Dec. 87. But it does not follow that she may not engage in an unlawful conspiracy with another to perpetrate the offense upon herself. Section 5059 of the Code declares that, if any two or more persons conspire and confederate together to commit a felony, they are guilty of the crime of conspiracy. This offense is distinct from the crime which it is the object of the conspiracy to commit, and the acquittal of one is not a bar to the prosecution of the other. State v. Brown, 95 Iowa, 381, 64 N. W. 277. Though she may not be guilty of committing an abortion upon herself, it is a crime for another to do so, and, if she conspires with others to perform the act, there is no escape from the conclusion that she is a co-conspirator, and that her declarations in promotion of the common enterprise are admissible in evidence against another conspirator on trial for the commission of the substantive crime. Underhill on Ev. 412. Solander v. People, 2 Colo. 48, where it was said: “She may be, and usually is, a party to the illegal combination to effect the abortion, and, as this is the ground upon which the declarations are admitted, it can make no difference that she is not criminally liable for the act done. * * * But where it appears that the woman not only submits to the unlawful attempt, but actively promotes it by seeking the aid of others and adopting the means suggested to accomplish the crime, it cannot be claimed that she is not a party to the criminal design. If the woman is not technically an accomplice she may, nevertheless, conspire with others to produce the abortion, and, conspiracy being shown, her acts and declarations in furtherance of the common design are evidence against others engaged with her in the criminal act.”

2. After the first trial of defendant Hammond, who was jointly indicted with him, was put on trial and acquitted. The trial court declined to treat this as an adjudication that the parties named had not conspired to commit the offense. Had the charge been conspiracy, there would have been much force in this contention, for a combination of two or more is essential to the commission of that offense, and it necessarily follows that, if one only of two charged therewith is found not guilty, the other must be innocent, for one alone could not have committed the particular offense. State v. Jackson, 24 Am. Rep. 476; 8 Cyc. 689. But conspiracy was not alleged in the indictment. Evidence thereof was introduced merely as an evidentiary fact, tending to establish the charge of murder. The conspiracy to commit a crime and the crime itself are distinct offenses, and the acquittal of one, as said, is not a bar to the prosecution of the other. State v. Brown, 95 Iowa, 381, 64 N. W. 277. See State v. Ormiston, 66 Iowa, 143, 23 N. W. 370. Here the conspiracy was not to commit the offense charged in the indictment but a separate and distinct one; i. e., that of abortion, which, as is contended by the state, resulted in death. The acquittal of Hammond is not a bar to a trial of him on the charge of having conspired to commit an abortion unnecessarily, and it follows it furnishes no obstacle to an inquiry concerning such conspiracy in the trial of the defendant for murder. The precise point was determined by the Supreme Court of Indiana (Musser v. State, 157 Ind. 423, 61 N. E. 1); the court saying that “where two or more persons are charged with a substantive offense, not a conspiracy, and it appears that the same was committed in pursuance of a conspiracy, the act and declaration of one shown to have been engaged in the conspiracy to commit such substantive crime are admissible in evidence on the trial of the other defendant, notwithstanding the person whose declarations are sought to be proved had been previously acquitted.” And by the Court of Criminal Appeals of Texas, in Holt v. State, 39 Cr. R. 282, 45 S. W. 1016, 46 S. W. 829. See People v. Kief, 126 N. Y. 661, 27 N. E. 556.

3. Two letters were received in evidence over defendant's objection, one purporting to have been written by Hammond to deceased bearing date “Jan. 15, 1900,” and the other from deceased to Hammond, dated “Jan 17, 1901.” These letters are too lengthy to be set out in full. The following extracts are all that are material:

“Decatur, Iowa, Jan. 15, 1900. Miss Maude Stone--Dearest Maude: Well this is Wed eve & I am going to write you a little bit although I am pretty D tired. I got home O K Sun eve but it was rather late. How did you feel Mon morn let me tell you I felt pretty tough but Maude my darling I never begrudge the time I spend with you I hope it wont be long until I can spend it all with you. Of course I know Maud you would rather wait till I am of age but I can get as much now as I can when I am 21 and maybe more we dont know what will happen between now and then. Say Maude my dear sweet girl I would give a good deal to know how you are. I do hope that Medicine will fix you out all right. I don't know how I will get away to go out there but Maude if you hafto go I will take you, but I wont tell the folks where I am going I dare not. But we will get out of it wont we darling. I hate to see our children go that way but we have got to do it so let it go. If we get married this spring we wont hafto do that way any more will we darling. But Maude I think more of your name than I do the child. I wouldant have you ruined by having a child before we were married for anything Maude. You know as well as I do what people would say dont you. * * * Maude I wish you would tell your mother that if Bony leaves we are going to get married and see what she says will you? * * * So good by dear sweet wife I am as ever your loving Hd. Ira.”

“Decatur, Iowa, Jan. 17, 1901. Mr. I. L. Hammond--My dear Ira. This is Thur. eve and I am going to write you a letter if some one don't bother me. How are you getting along. All right I hope. I am just the same not a bit of change in any way. You know what. Verne and Shorty have gone to Leon. I hope you didn't go and I am pretty sure you didn't. I have been washing today. I never ironed Monday as I said I was going to. I done it yesterday. Rue has been gone every day this week. He went down to Mary's fathers Monday and never came back until Thur noon & then Mary and him both went away that evening & never came back until today noon. They went to see about getting a place but they never got one. I don't believe they are going to try to buy a place now. I think they will build. I wish they would buy but if they don't I can't help it. It would be a whole lot better for them to get away from here as soon as possible. I told Mary today that they had all been visiting but me & that I was going to go. I told Ma I wanted to go & she said all right, but Ira I am going to go two places. I am going to Cainesville & Mt. Ayr, the reason I am going to Mt. Ayr is because it is right on the road to Lamoni. I am going Tues. & I am going to start for Mt Ayr. Of course you know where I will stop & as soon as I can leave there I will go on to Mt. Ayr & you see the folks will never know but what I have been there all the time & from there go to Cainesville. I will not be gone only one Sun. Now I dont hardly know which would be the best for me to go on the train or have you take me but if you don't take me Ira my dear one won't you please come out there Wed. and stay until I leave. Please do Ira. I know you can. Your folks may give you h-- but I have stood more from my folks than you have from yours so darling please go. It will be lots...