State v. Gilmore

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLADD
PartiesSTATE v. GILMORE.
Decision Date05 July 1911

151 Iowa 618
132 N.W. 53

STATE
v.
GILMORE.

Supreme Court of Iowa.

July 5, 1911.


Appeal from District Court, Jones County; F. O. Ellison, Judge.

The accused was convicted of murder in the second decree, and appeals. Reversed.

Deemer, J., dissenting in part.

[132 N.W. 54]

Jamison, Smyth & Hann, for appellant.

George Cosson, Atty. Gen., and Henry E. Sampson, Sp. Counsel, for the State.


LADD, J.

The defendant is accused of having caused the death of Gertrude Jackson by committing an abortion on her, not necessary to save her life. She was unmarried, about 25 years of age, and died July 14, 1909. Rulings under which evidence of her acts and declarations, not in the presence of defendant, was received are assigned as errors. These evidently were based on the theory that she had entered into an arrangement with the accused to cause a miscarriage, and, of course, if this were shown, whatever she may have done or said in promotion of the unlawful enterprise while it was pending was appropriate for the consideration of the jury.

[1] The victim of an abortion may become co-conspirator with the perpetrator of the offense, in which her acts and declarations done or made pending the alleged conspiracy, and in promotion thereof, may be proven on the trial of such perpetrator. State v. Crofford, 133 Iowa, 478, 110 N. W. 437;State v. McGee, 81 Iowa, 17, 46 N. W. 764;State v. Caine, 134 Iowa, 147, 111 N. W. 443;State v. Crofford, 121 Iowa, 395, 96 N. W. 889. But statements or acts of a co-conspirator, before the conspiracy was formed or after its termination, or not in promotion thereof, though provable as admissions against such co-conspirator, may not be introduced against an associate in the conspiracy, on trial therefor, or for a crime alleged to have been perpetrated in pursuance thereof. State v. Crofford, supra.

[2] To render such evidence admissible, two conditions are absolutely essential: (1) That the acts or declarations sought to be shown were done or made pending the conspiracy; and (2) they were in promotion of its object or design. State v. McGee, 81 Iowa, 17, 46 N. W. 764;State v. Walker, 124 Iowa, 414, 100 N. W. 354;State v. Crofford, 121 Iowa, 395, 96 N. W. 889.

[3] Ordinarily there should be prima facie proof of the existence of a conspiracy, before evidence of any acts or declarations of a co-conspirator is received, but, as the order in which evidence shall be introduced is discretionary with the trial court, it is not necessarily error to allow evidence of such acts and declarations to be adduced in advance of prima facia proof, on assurance that this will be produced subsequently. State v. Mushrush, 97 Iowa, 444, 66 N. W. 746;State v. Grant, 86 Iowa, 216, 53 N. W. 120. The better practice, however, is to require a prima facia showing of conspiracy before receiving such evidence. State v. Walker, 124 Iowa, 414, 100 N. W. 354;State v. Wheeler, 129 Iowa, 100, 105 N. W. 374.

[132 N.W. 55]

And this should always be done as a matter of fairness to the defendant unless there is some reason which seems persuasive to the court for changing the order of proof. On the assurance of the attorney for the state that proof of conspiracy subsequently would be made, evidence of what deceased did and said during the week preceding her death was received over timely objections by the accused. But no evidence whatever tending to show that defendant had ever met deceased, or communicated with her directly or indirectly, prior to the day before she died was adduced by the state. Nor does it appear that what he did on that day was owing to any arrangement or understanding with deceased. She was very sick, and he was called by her sister, with the knowledge of her father, and whatever he did apparently was without consulting her wishes.

The theory of the state seems to have been that the alleged conspiracy might be shown by declarations of the deceased alone. No authority so holding has been cited, and none can be found. Certainly nothing said in State v. Crofford, 133 Iowa, 478, 110 N. W. 921, warrants such a conclusion. There a letter written by the victim of abortion to her paramour, after the latter was shown to have entered into a conspiracy with the defendant therein, was held to be admissible in evidence as tending to establish her connection with the conspiracy; that is, that she was either joining in the enterprise of the other two, or entering into an unlawful arrangement with the one addressed. But no one will pretend that this letter alone implicated the defendant therein. Nor is there any ground for saying that the declarations of deceased alone tended to connect this defendant with any conspiracy. As to him, these were in the nature of hearsay, until there was prima facia...

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22 practice notes
  • State v. Stogsdill, No. 29555.
    • United States
    • United States State Supreme Court of Missouri
    • December 11, 1929
    ...alone, but must be shown by other facts and circumstances independent of their statements. State v. Loeb, 190 S.W. 304; State v. Gilmore, 132 N.W. 53. (8) The State, without incompetent, irrelevant and illegal testimony sought to show a conspiracy to kill deceased. The existence of such con......
  • State v. Britt, No. S-14-551.
    • United States
    • Supreme Court of Nebraska
    • April 22, 2016
    ...supra note 9. 53. State v. Cornell, 314 Or. 673, 842 P.2d 394 (1992); State v. Helmick, supra note 31. 54. Id. 55. State v. Gilmore, 151 Iowa 618, 132 N.W. 53 (1911). 56. State v. Warren, 242 Iowa 1176, 47 N.W.2d 221 (1951). 57. See, U.S. v. Blakey, 960 F.2d 996 (11th Cir. 1992); 4 A.L.R.3d......
  • State v. Britt, No. S–14–551.
    • United States
    • Supreme Court of Nebraska
    • April 22, 2016
    ...v. Henry, supra note 9.53 State v. Cornell, 314 Or. 673, 842 P.2d 394 (1992) ; State v. Helmick, supra note 31.54 Id. 55 State v. Gilmore, 151 Iowa 618, 132 N.W. 53 (1911).56 State v. Warren, 242 Iowa 1176, 47 N.W.2d 221 (1951).57 See, U.S. v. Blakey, 960 F.2d 996 (11th Cir.1992) ; 4 A.L.R.......
  • State v. Sentner, No. 45227.
    • United States
    • United States State Supreme Court of Iowa
    • June 17, 1941
    ...conspiracy has been prima facie established by independent testimony. State v. Priebe, 198 Iowa 609, 611, 199 N.W. 276;State v. Gilmore, 151 Iowa 618, 132 N.W. 53, 35 L.R.A., N.S., 1084. In fairness to the defendant, and to eliminate chances of error, the practice recommended should be more......
  • Request a trial to view additional results
22 cases
  • State v. Stogsdill, No. 29555.
    • United States
    • United States State Supreme Court of Missouri
    • December 11, 1929
    ...alone, but must be shown by other facts and circumstances independent of their statements. State v. Loeb, 190 S.W. 304; State v. Gilmore, 132 N.W. 53. (8) The State, without incompetent, irrelevant and illegal testimony sought to show a conspiracy to kill deceased. The existence of such con......
  • State v. Britt, No. S-14-551.
    • United States
    • Supreme Court of Nebraska
    • April 22, 2016
    ...supra note 9. 53. State v. Cornell, 314 Or. 673, 842 P.2d 394 (1992); State v. Helmick, supra note 31. 54. Id. 55. State v. Gilmore, 151 Iowa 618, 132 N.W. 53 (1911). 56. State v. Warren, 242 Iowa 1176, 47 N.W.2d 221 (1951). 57. See, U.S. v. Blakey, 960 F.2d 996 (11th Cir. 1992); 4 A.L.R.3d......
  • State v. Britt, No. S–14–551.
    • United States
    • Supreme Court of Nebraska
    • April 22, 2016
    ...v. Henry, supra note 9.53 State v. Cornell, 314 Or. 673, 842 P.2d 394 (1992) ; State v. Helmick, supra note 31.54 Id. 55 State v. Gilmore, 151 Iowa 618, 132 N.W. 53 (1911).56 State v. Warren, 242 Iowa 1176, 47 N.W.2d 221 (1951).57 See, U.S. v. Blakey, 960 F.2d 996 (11th Cir.1992) ; 4 A.L.R.......
  • State v. Sentner, No. 45227.
    • United States
    • United States State Supreme Court of Iowa
    • June 17, 1941
    ...conspiracy has been prima facie established by independent testimony. State v. Priebe, 198 Iowa 609, 611, 199 N.W. 276;State v. Gilmore, 151 Iowa 618, 132 N.W. 53, 35 L.R.A., N.S., 1084. In fairness to the defendant, and to eliminate chances of error, the practice recommended should be more......
  • Request a trial to view additional results

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