State v. Ormiston
| Citation | 66 Iowa 143,23 N.W. 370 |
| Parties | STATE v. ORMISTON AND OTHERS. |
| Decision Date | 24 April 1885 |
| Court | United States State Supreme Court of Iowa |
The indictment in the case charged that “Calvin Ormiston, David Ormiston, and Charles Bramer did wickedly and maliciously conspire together with intent wrongfully to injure the person and character of one Charles Blanchard, and to assault the said Charles Blanchard with the felonious intent to inflict upon him a great bodily injury, in violation of law; and in pursuance of said conspiring together said defendants, did, in the night-time, feloniously decoy said Charles Blanchard away from his home and family, and into the public highway, and did then and there feloniously assault, ill-treat, and tar and feather the said Charles Blanchard.” Upon this indictment the defendants were convicted and sentenced to confinement in the penitentiary for three months. They appeal.
Winslow & Varnum, for appellants.
Smith McPherson, Atty. Gen., for the State.
1. After verdict the defendants moved an arrest of judgment, on the ground that “the indictment charges no offense, and is bad for duplicity.” The indictment, we assume, was drawn under section 4087 of the Code. That section is in these words: “If any two or more persons conspire or confederate together with the faudulent or malicious intent wrongfully to injure the person, character, business, or property of another, * * * every such offender shall be punished by imprisonment,” etc. As to the position that the indictment does not charge any offense, the defendants, by their counsel, in their argument, say: This criticism, we suppose, is made with reference to so much of the indictment as charges a conspiracy “to assault the said Charles Blanchard, with the feloniousintent to inflict upon him a great bodily injury.” To the criticism we think that two sufficient answers may be made. We do not think that there was any design to charge the defendants with intending to have an intent. The allegation that the defendants conspired to assault Blanchard, with intent to inflict a great bodily injury, means, by any fair construction, to charge them with conspiring to assault him, and to inflict a great bodily injury. In the second place, if it were true that the words referred to charge no offense, they should be treated merely as surplusage. The offense is sufficiently charged in the use of other words. The indictment charges that the defendants “did conspire, with intent wrongfully to injure the person and character of Blanchard.” In this the indictment followed the statute substantially, and if the portion criticised is meaningless, it did not have the effect to vitiate the indictment. Larned v. Com. 12 Metc. 240; Lohman v. People, 1 N. Y. 379.
Another objection, however, is urged, which is of a different character. It is said that the indictment is bad for duplicity. The defendants' theory is that if the indictment charges a conspiracy at all, it charges two offenses, to-wit, a conspiracy to injure the person of Blanchard, and the actual commission of the injury. It is not to be denied, we think, that the indictment charges a conspiracy and the overt act which the defendants conspired to commit. The court below, however, did not regard the indictment as charging two offenses, nor a compound offense, but simply a conspiracy; and so instructed the jury. Its instruction on this point is in these words: “Under the indictment and evidence in this case, you are limited to the inquiry as to whether said defendants, or some two or more of them, did conspire or confederate together,” etc. Not only was the indictment not demurred to on the ground that it charged two offenses, but it appears affirmatively that the case was tried and submitted upon the theory that the indictment charged only conspiracy. The offense of conspiracy may, it is true, be complete without the commission of the overt act which the conspirators agreed to commit. Com. v. Judd, 2 Mass. 329;Com. v. Warren, 6 Mass. 74;State v. Buchanan, 5 Har. & J. 317;State v. Noyes, 25 Vt. 415. It would seem to follow that, though the overt act may have been committed, it is unnecessary to charge it, unless the indictment is drawn under a statute which requires that it should be charged.
In 2 Bish. Crim. Law, § 203, the author says: “In conspiracy the indictment usually sets out the matter aggravating the offense, yet the offense exists without this matter, and, strictly, it need not be stated in the indictment, though some authorities hold otherwise.” On this point we observe that in 3 Greenl. Ev. § 95, the learned author seems to regard the rule as different from what Bishop does. He says: “If the conspiracy was carried out to the full accomplishment of its object, it is necessary to state what was done, and the persons who were thereby injured.” In State v. Mayberry, 48 Me. 218, it was held that if the conspirators carry out the object of conspiracy, that fact may be alleged in aggravation of the offense, and given in evidence to prove the conspiracy. Though the offense of conspiracy, even where the overt act is committed, is complete before the commission of the overt act, in the sense that nothing more is necessary to constitute the crime, yet the conspiracy must be deemed to continue during the commission of the overt act. Com. v. Corlies, 3 Brewst. (Pa.) 575. The conclusion which we reach is that where the overt act is charged, it does not follow necessarily that the indictment was designed to charge anything more than conspiracy. If it should be so drawn as to show a design to claim a conviction for the injury committed, though the evidence should fail to sustain the charge of conspiracy, such indictment manifestly could not be sustained unless the offense could be regarded as a compound offense.
In State v. Ridley, 48 Iowa, 370, the defendants were charged with burglary, with intent to commit larceny, and with the commission of the larceny intended. The indictment was construed by the court below as charging the offense of burglary, and the offense of larceny, and the court instructed the jury that they might convict of either offense, as the evidence should warrant. Burglary and larceny not being a compound offense, it appeared to this court that the defendants were, under the indictment, tried at one time for two offenses, and that the demurrer to the indictment should have been sustained. But that case differs from this. The burglary did not continue during the larceny so as to make the act of larceny identical with the act of burglary. The act of burglary was necessarily completed before the act of larceny began. In the case at bar the conspiracy continued and embraced the overt act, and while we do not say that the defendants might not have been convicted and punished under separate indictments, both for the conspiracy and the injury committed, we do not think that the indictment in this case was drawn with the view of securing a conviction for two offenses, or of allowing the jury to convict for the injury if they failed to find a conspiracy. We think that we are justified in saying this in view of the peculiar character of the offense, and in view of the doctrine which has prevailed in regard to indictments drawn with the design of charging this offense.
We are not able to cite any ruling of this court which we can say is precisely in point; but we think the ruling which we now make is sustained in a general way by State v. Hayden, 45 Iowa, 11, and State v. Shaffer, 59 Iowa, 290, S. C. 13 N. W. REP. 306. It seems to us, indeed, that the present case is a stronger one in favor of the indictment than either of those. The defendant relies upon State v. Kennedy, 18 N. W. REP. 885. The indictment in that case was held bad for duplicity. But in that case there was a charge of burning insured goods, and that charge was not made simply as an overt act of the conspiracy. The agreement was to remove the goods, and burn the building. The indictment then appears to charge the doing of something outside of the conspiracy. Mr. Justice REED, in the opinion, referring to the allegation in respect to burning the insured goods, says: “These allegations are all distinct from the charge of conspiracy.” And, again, he says: “The offense charged by the allegations is entirely distinct from any of the offenses which it is alleged in the part of the indictment charging the conspiracy was the object of the conspiracy.” It is manifest that if the indictment charged a crime not contemplated by the conspiracy, the indictment was bad for duplicity. Possibly, some language used in the course of the opinion might seem to afford some support to the defendant's position; but it will be seen that there is an essential difference between that case and this.
Another objection urged is that the indictment does not set out the means which the defendant intended to employ. It was held in State v. Potter, 28 Iowa, 554, that where the intended act is not criminal, the indictment should charge with what means the act was to be done. But in the case at bar the intended act was criminal. The conspiracy alleged was to wrongfully injure the person of Blanchard. It is true that to wrongfully injure the person of another is not necessarily more than a misdemeanor, but it is at least that; and in our opinion an indictment which charges a conspiracy to commit such injury need not charge the means by which it was to be done.
2. The evidence shows that during the assault the persons who were engaged in making it charged Blanchard with having been too intimate with the school-mistress. The defendants sought to show...
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