State v. Loser
| Citation | 104 N.W. 337,132 Iowa 419 |
| Parties | STATE OF IOWA, Appellee, v. LEON LOSER, ED. MOORE, ET AL., Appellants |
| Decision Date | 11 July 1905 |
| Court | Iowa Supreme Court |
REHEARING DENIED, WEDNESDAY, NOVEMBER 21, 1906.
Appeal from Pottawattamie District Court.--HON. W. R. GREEN and A B. THORNELL, Judges.
INDICTMENT for criminal conspiracy. Trial to a jury, verdict and judgment of guilty, and defendants appeal.--Reversed.
Reversed and remanded.
A. W Askwith and B. I. Salinger, for appellants.
Charles W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.
The indictment charges defendants Loser, Moore, and Grimm, with the crime of conspiracy, in that, with unlawful, fraudulent, and malicious intent to injure the business, property, and rights in property of Charles Gregory, William Barker, and numerous other persons, they did then and there mutually conspire and confederate together,
with the unlawful, fraudulent, felonious and malicious intent and purpose wrongfully to cheat, designedly, unlawfully, fraudulently, and feloniously by false pretenses, all the persons above named and referred to, and by means of false and fraudulent pretenses, statements and representations to obtain unlawfully, designedly, fraudulently, and feloniously from said persons above named and referred to more than $ 5,000.00 in good and lawful money of the United States of America, and bank drafts all of the value of more than $ 5,000.00 and of the property of the said Charles Gregory and William Barker, and as a result and consummation of said conspiracy, defendants did wilfully, unlawfully, designedly, fraudulently and feloniously, by means of false and fraudulent statements, pretenses and representations, obtain from said Charles Gregory and of their property more than $ 5,000 in good and lawful money of the U.S. of A. and good and valid bank drafts.
The gist of the crime charged is a conspiracy to commit the crime of cheating by false pretenses. The material parts of the statutes under which this indictment was found read as follows (section 5059): "If two or more persons confederate or conspire together with the fraudulent or malicious intent wrongfully to injure the person, character, business property, or rights in property of another; 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," etc. Section 5041 defines false pretenses, and makes it a felony for any person to "designedly and by false pretenses, or by any privy or false token, and with intent to defraud, obtain from another any money, goods or other property. . . .
The first point made on the appeal is that the indictment is bad for duplicity, or is uncertain in its language, in that it charges a conspiracy to injure the business, property, and rights in property of another or others, and also the overt act of cheating by false pretenses. The language of the statute quoted is disjunctive in character, and in such cases it is permissible to charge the enumerated acts conjunctively. State v. Phipps, 95 Iowa 491, 64 N.W. 411; State v. Feuerhaken, 96 Iowa 299, 65 N.W. 299.
II. As the crime charged is conspiracy to commit unlawful acts, the commission of these acts need not be charged as if the overt acts were the basis of the charge. The crime charged is the conspiracy, and may be established although no overt acts were in fact committed; hence the State is not required to state these acts with the same particularity as if it were relying upon them alone for a conviction. State v. Savoye, 48 Iowa 562; People v. Watson, 75 Mich. 582 (42 N.W. 1005); State v. Grant, 86 Iowa 216, 53 N.W. 120; State v. Soper, 118 Iowa 1, 91 N.W. 774, and cases cited; State v. Sterling, 34 Iowa 443; State v. King, 104 Iowa 727, 74 N.W. 691; People v. Arnold, 46 Mich. 268 (9 N.W. 406); State v. Ormiston, 66 Iowa 143, 23 N.W. 370; Com. v. Goldsmith, 12 Phila. 632.
III. The overt acts in this case were committed in Missouri, and it is stoutly contended by counsel that while the indictment is sufficient, in that it charges a conspiracy in this State to commit the crime of cheating by false pretenses, yet the evidence does not support the charge, in that the acts which it is alleged the defendants conspired to commit were not a felony--that is, were not punishable by imprisonment in the penitentiary--in this State, and defendants were guilty of no offense. Counsel frankly concede that it was competent for the Legislature to make it a crime for persons to conspire in this State to commit a crime in another, yet they say that it has not in fact done so. The argument proceeds on the theory that the term "felony," when used in our statute, has a distinct and definite significance; that is to say, that it is a crime punishable by imprisonment in the penitentiary of this State, and not in some other penitentiary. There is much force in this argument, and, if the statute merely made it a crime to conspire to commit a felony, the writer would be inclined to agree with defendants' contention. But the statute is much broader than this. It makes it a crime for persons to conspire to injure the business, property, or rights in property of another, and also recognizes the existence of common-law conspiracies by providing punishment therefor. Counsel say that cheating by false pretenses was not a crime at common law, which is undoubtedly true; but their conclusion that there was no such thing at common law as a conspiracy to cheat and defraud is not sound. It was a crime at common law to conspire to cheat and defraud, even without the use of false tokens, by means which were simply wrongful and unlawful, although not criminal. The logic of the cases is that it is the combination which constitutes the unlawful offense, and it was deemed immaterial that the cheat, or the false and fraudulent devices by which it was executed, would not be punishable as crimes, if unassociated with the conspiracy. The cases are fully collected in 8 Cyc., pages 630, 631. Among them we cite the following: State v. Gannon, 75 Conn. 206 (52 A. 727); State v. Buchanan, 5 H. & J. 317, note (9 Am. Dec. 534); Com. v. Hunt, 45 Mass. 111, 4 Met. 111 (38 Am. Dec. 346); Twitchell v. Com., 9 Pa. 211; State v. Cole, 39 N.J.L. 324; Reg. v. Orman, 14 Cox, C. C. 381; 1 Hawk. P.C. 190, chapter 72; Bradshaw v. Territory, 3 Wash. Terr. 265 (14 P. 594); People v. Clark, 10 Mich. 310. Doubtless the Legislature intended to cover just such cases as this in the fore part of the section quoted. But whether it did or not, it recognized the continued existence of common-law conspiracies. That it was a conspiracy at common law to do what the defendants in this case were charged with doing is clear from the authorities already cited, and this is true although the overt acts may have been committed in another jurisdiction, or were not, where committed, a crime at all. State v. Buchanan, supra, is one of the leading cases on this subject, and is a clear exposition of common-law conspiracies.
Under such a charge as was here made, it is sufficient to prove the conspiracy in this State, and the commission of the overt acts in another jurisdiction. Ex parte Rogers, 10 Tex. Ct. App. 655 (88 Am. Rep. 654); Thompson v. State, 106 Ala. 67 (17 So. 512). And in such cases it seems to be immaterial that the overt act did not constitute a crime in the foreign jurisdiction. This being true, it is also immaterial, so far as this point is concerned, whether the overt acts constituted a felony in this State, had they been committed here. We shall presume, of course--for it is the law--that, in the absence of proof to the contrary, the laws of the State of Missouri are the same as our own, and that the overt acts were a felony in that State. This, not for the purpose of determining the sufficiency of the proof alone, but also for objects which will presently appear.
Some States hold that in the absence of statute the common law as to conspiracy is in force in this country. See learned opinion of Chief Justice Shaw, in Com. v. Hunt, supra, and State v. Buchanan, supra. Generally speaking, we have no common-law crimes in this State, but the statute we have quoted expressly recognizes common-law conspiracies; and we must look to the common law for the definition of such offenses, and for the rules governing the same. State v. Twogood, 7 Iowa 252. Our statute does not require the commission of an overt act, as in some States; and the common law obtains here, to the effect that proof of the overt act is unnecessary. Therefore it is unlawful at common law to conspire to commit unlawful acts in a foreign jurisdiction. See cases hitherto cited, and, in addition, Dealy v. U. S., 152 U.S. 539 (14 S.Ct. 680, 38 L.Ed. 545); Bloomer v. State, 48 Md. 521; In re Wolf (D. C.) 27 F. 606.
The mere fact, then, that the overt acts in the instant case were to be, and were, in fact, committed in Missouri, is of no consequence in this connection. We do not overlook the fact that it has been held in this jurisdiction that the means agreed to be used must not only be wrongful but criminal as well. State v. Jones, 13 Iowa 269; State v. Stevens, 30 Iowa 391; State v. Potter, 28 Iowa 554. That is to say, under our holdings, the object must be a criminal one. But to cheat by false pretenses or by false tokens is criminal in this State, and presumptively so in Missouri. Moreover, the acts which the defendants proposed to do were criminal in this State, and, as no proof that they were in fact accomplished was needed, the offense was complete here. In this connection we are considering the common-law crime of conspiracy, and are not dealing directly with...
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