State v. Madden

• Decision Date: 06 October 1914
• Docket Number: No. 29596.,29596.
• Parties: STATE v. MADDEN.
• Court: Iowa Supreme Court

170 Iowa 230

148 N.W. 995

STATE

v.MADDEN.

No. 29596.

Supreme Court of Iowa.

Oct. 6, 1914.

Appeal from District Court, Union County; T. L. Maxwell, Judge.

The appellant, James Saling, and Evert Emerson were indicted, charged with the crime of conspiracy to burn certain buildings and contents for the purpose of injuring the insurers. Appellant Madden was tried separately, and, from a judgment against him, he appeals. Affirmed.E. A. Lee, D. W. Higbee, and S. R. Allen, all of Creston, and Temple & Temple, of Osceola, for appellant.

Geo. Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., of Des Moines, for the State.

PRESTON, J.

1. Appellant asks a reversal because of alleged error in overruling his motion in arrest of judgment and for a new trial because, as he says, the indictment is bad for duplicity; because of the insufficiency of the evidence to support the verdict; error in instructions given and in the admission of testimony.

[1] As to the first point, appellant contends that the indictment charges the commission of more than one offense. The indictment charges a conspiracy to burn property and commit a felony, to wit, arson. The defendant was put upon trial and tried for the single offense of conspiracy. The indictment alleges overt acts as a result of the conspiracy in that it is charged that there were attempts to burn and burnings as a consummation of the conspiracy. It is also charged that it was with intent to injure insurers of the several buildings and contents, and which were described in the indictment. There could be several burnings under one unlawful combination or agreement. The indictment does not charge a conspiracy and, in addition, a separate and distinct charge of burning, as in some of the cases cited. As stated, the charge is conspiracy, and that the burning was the result or object of the conspiracy.

It has been held that where an indictment charges a conspiracy, and also an overt act committed as a result of said conspiracy, which is in itself criminal, the indictment is not bad for duplicity, where no conviction is sought on account of the overt act. State v. Grant, 86 Iowa, 216, 53 N. W. 120;State v. Ormiston, 66 Iowa, 146, 23 N. W. 370.

In the Grant Case, supra, the defendant was indicted and tried for conspiracy to obtain from several different persons their names and signatures to promissory notes, and it further charged that the defendant and his co-conspirators did obtain the signatures to promissory notes from several different persons as a result and consummation of the conspiracy. It was the claim of the defendant, Grant, in that case that the indictment charged more than one offense. In passing upon this question, the court said:

“It is insisted with much confidence that the indictment charges more than one offense because the object, aim, and purpose of the conspiracy is charged to be to obtain the signature of the several persons to several and distinct notes, and it is said each of these transactions constitutes a separate offense. The agreement to do these several acts, though consummated at different times, and with different individuals, and in some cases by different employés of the defendants, is charged as constituting a single conspiracy. As is charged, they are but a part and parcel of a single scheme. The conspiracy might embrace the purpose and object of obtaining signatures to notes from a hundred different individuals, and, so far as that fact is concerned, it would be none the less a conspiracy. The design charged was to obtain the signatures of all the parties named, and others unknown, to notes. Must it be held, then, that although there was but one agreement or arrangement which embraced the intention to procure all these notes, as to each note and each individual the conspiracy was separate? Manifestly such cannot be the law. The agreement of the conspirators may contemplate dealings with one man or many, at the same or at different times, in relation to the same or different matters. While in one sense the procuring of the signature of each individual to a note was a distinct transaction, yet each and all together constituted a single illegal aim, object, purpose, and agreement, and but a single offense. These several contemplated acts were a part of a system or scheme of conspiracy. Wharton, Crim. Ev. § 32; Card v. State, 109 Ind. 415 .”

It is alleged in the indictment in this case that the defendants conspired together to commit a felony, to wit, arson, and then the pleader enumerates the burnings caused by the defendants pursuant to the conspiracy.

[2] It is also the claim of the appellant that no such crime as arson is known to the statutes of this state, and that therefore no crime is charged. The gist of the offense of conspiracy is the unlawful agreement or combination, and where this agreement is to perpetrate a crime known to the common law, or defined by statute in unmistakable terms, all that is necessary for the purpose of the indictment is to designate the offense by using the name by which it is familiarly known. State v. Clemenson, 123 Iowa, 524, 99 N. W. 139. And see, as having a bearing, State v. Hardin, 144 Iowa, 264, 120 N. W. 470, 138 Am. St. Rep. 292.

This court has designated the different burnings as arson, as defined and made punishable under sections 4776 to 4780 of the Code. State v. Harvey, 130 Iowa, 394, 106 N. W. 938. Though it is true that the point was not expressly decided in the Clemenson Case, nor do the sections of the statute designate the different burnings therein provided for as arson. It is true that at common law arson is generally defined as the willful and malicious burning of a house or outhouse of another, but the definition of the word has been extended to include the willful and malicious destruction of other property by fire. The indictment charges a conspiracy to commit a crime which is generally known as “arson,” and the use of that word alone would have been sufficient to advise the defendant of the crime for which he was to be placed on trial. In addition to that, the indictment makes more specific the crime with which he is charged by setting out the different burnings that it is alleged he conspired with his codefendants to commit. The crime intended to be accomplished by the conspiracy need not be described in the indictment with the accuracy or detail which would be essential in the indictment for the commission of the offense itself, but need only be designated as it is known to the common law or defined by statute. 8 Cyc. 664; State v. Soper, 118 Iowa, 1, 4, 91 N. W. 774. The crime that it is charged the defendant conspired to commit is included in the definition of “arson,” as the word has become generally known and defined by the statutes and the courts.

[3] It is true, of course, as argued by appellant, that proof of overt acts, under an indictment for a conspiracy, will not warrant a conviction of the felony perpetrated by the overt act. The jury was so instructed in this case, and it was plainly told that the conspiracy must be shown, and that there could be no conviction but for conspiracy. It is competent to prove overt acts, with other facts and circumstances, for the purpose of showing the common purpose by defendants and their intention, and to aggravate the conspiracy.

[4] 2. Defendant claimed on the trial that he and a codefendant had hauled a certain number of loads of secondhand furniture from Creston to Cromwell, and that they put the furniture in one of the buildings burned. The teams, or some of them, had been hired for that purpose, at least such was the claim of defendant. The state sought to prove, and there was evidence tending to show, that fewer loads were hauled. Defendant claimed that one Towne, who died before the trial, was one of the drivers hauling furniture. Towne and Stubblefield were looking after the draying business. Stubblefield, as a witness in rebuttal, testified that he had made an investigation of the books used in connection with the business, and was then asked:

“Q. I will ask you if you found in your books any charges against Mr. Madden or Mr. Saling for a trip to Cromwell? A. No, sir.”

The defendant moves the court to strike from the record, and to withdraw from the consideration of the jury, the question and answer, for the reason that the same is incompetent, immaterial, irrelevant, and not the best evidence. The motion was overruled, and exception taken.

The state was seeking to prove a negative that the books did not show a charge, so that, as to the objection that the evidence called for was not the best evidence, it may be that the ruling was correct. But that question has not been argued. It is now insisted that the evidence was hearsay. The objection made did not cover the objection that the evidence was hearsay. Iowa Homestead Co. v. Duncombe, 51 Iowa, 525, 1 N. W. 725;White v. Smith, 54 Iowa, 236, 6 N. W. 284;Harvey v. Railway, 129 Iowa, 482, 105 N. W. 958, 3 L. R. A. (N. S.) 973, 113 Am. St. Rep. 483;State v. Wilson, 157 Iowa, 698, 713, 141 N. W. 337.

[5] Furthermore, the objection was not timely. If the question was objectionable, it was as apparent before the answer as after. Possibly counsel for defendant thought they had reason to believe the witness would answer yes, which would have been in favor of the defendant, and for this reason they may have concluded to not object but take their chances on the answer being favorable, and, if it was not so, move to exclude it. The objection should have been made before the answer. State v. Stutches, 144 N. W. 597, 599;Breiner v. Nugent, 136 Iowa, 322, 328, 111 N. W. 446.

[6][7] 3. Mrs. Gidley, a witness for the state, was asked on cross-examination:

“Q. Isn't it a fact that at one time, prior to this fire of Saling's, you stated to Mrs. Madden that her husband was intimate with Viney Bines? (The objection to this was sustained.) Counsel for defendant said: I want to...