State v. Gilmore

• Decision Date: 05 July 1911
• Citation: 132 N.W. 53,151 Iowa 618
• Parties: STATE v. GILMORE.
• Court: Iowa Supreme Court

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.

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.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 proof of some unlawful arrangement or agreement between them, in which event they were a part of the res gestæ. Of course, such acts or statements of hers as tended to establish an unlawful combination between them might be shown, but this is not saying that these may be sufficient for that purpose. Before these may be considered against the accused, he must be shown in some way, by direct or circumstantial evidence, to have joined in the enterprise. “No man's connection with the conspiracy can be legally established by what others did in his absence, and without his knowledge and concurrence.” U. S. v. Babcock, 3 Dill. 581, Fed. Cas. No. 14,487. “To admit such declarations--such hearsay testimony--in proof of the conspiracy itself would in civil matters put every man at the mercy of rogues; and in charges of criminal conspiracy render the innocent the helpless victims of villainous schemes, supported and proved by prearranged and manufactured evidence of the promoters thereof.” People v. Irwin, 77 Cal. 494, 20 Pac. 56;Cuyler v. McCartney, 40 N. Y. 221;Blain v. State, 33 Tex. Cr. R. 236, 26 S. W. 63;State v. Weaver, 57 Iowa, 730, 11 N. W. 675. As said, the state did not introduce any substantive evidence indicating that defendant had met deceased prior to July 13th, the day before her death, or had had any communication with her, and therefore all declarations in promotion of an alleged conspiracy prior to that time appeared at the close of the state's evidence to have been erroneously received.

[4] 2. No motion to strike the evidence referred to was then interposed, and the defendant, in his own behalf, testified that he had met deceased at his office on Saturday July 10th; that she told him she had been sent by another physician; was in trouble; and that he told her he could not take her case, and gave her no treatment. Even if from this and deceased's statements that she was going to the defendant's office on the day named, and subsequent statement that she had been there, in connection with other circumstances, were sufficient evidence from which a conspiracy might be inferred, all evidence of acts and declarations prior thereto should have been stricken on defendant's motion, or the jury warned not to consider it. See State v. Walker, supra. That such evidence was extremely prejudicial appears from a recital of that given by Mrs. Hotz, sister of the deceased. She testified that deceased had said to her on Monday, July 5th, that she was going to see the defendant the next day; that Dr....