State v. ENO

• Decision Date: 16 October 1906
• Citation: 131 Iowa 619,109 N.W. 119
• Parties: STATE v. ENO.
• Court: Iowa Supreme Court

131 Iowa 619

109 N.W. 119

STATE

v.ENO.

Supreme Court of Iowa.

Oct. 16, 1906.

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

The defendant was convicted of the crime of conspiracy, and appeals. Reversed.Arthur R. Wells, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

SHERWIN, J.

The indictment on which the defendant was tried charges that he and one White “fraudulently devising to cheat and defraud Sarah Roach and John A. Roach, did then and there conspire and agree together with the fraudulent and malicious intent wrongfully to get and obtain, knowingly and designedly, by means of false pretenses, a certain house and lot in the city of Corning, Iowa.” The indictment is under Code, § 5059, which provides for the punishment of conspiracies, and defines the offense in the following words, so far as it is material here: “If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the property or rights in property of another, they are guilty of a conspiracy.”

The sufficiency of the indictment is the controlling question for our determination. It will be observed that it charges that land was obtained by means of false pretenses, and, unless it is a crime to so obtain land, the indictment is clearly insufficient, because it does not meet the requirement that where the basis of a conspiracy is an act not criminal in itself the unlawful means which give to it its criminal character must be particularly set forth. State v. Potter, 28 Iowa, 554;State v. Stevens, 30 Iowa, 391. An indictment for conspiracy must show that the object of the conspiracy was criminal, or, if the object itself be not criminal, that the means employed to accomplish the object were criminal. State v. Jones, 13 Iowa, 269; State v. Stevens, supra; State v. Potter, supra; State v. Soper, 118 Iowa, 1, 91 N. W. 774. Code, § 5041, defines the crime of cheating by false pretenses as follows: “If any person designedly and, by false pretense or by any privy or false token, and with intent to defraud, obtain from another any money, goods, or other property, he shall be punished,” etc.

It is the general holding that neither the common law, nor the statutes of the several states defining the crime of cheating by false pretense, apply to real estate. Under the English law, real property was never the subject either of cheating or of false pretenses. Being incapable of larcenous asportation, it was not regarded as requiring the same protection as personal property. The crime of obtaining money or goods by false pretenses is said to be closely allied to that of larceny, and the common law and statutes defining the crime were...