State v. Soper
| Decision Date | 07 October 1902 |
| Citation | 91 N.W. 774,118 Iowa 1 |
| Parties | THE STATE OF IOWA v. HUBBELL O. SOPER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Washington District Court.--HON. W. S. WITHROW, Judge.
THE appellant with three others, was indicted for conspiracy with intent by false pretenses to obtain the signatures of certain persons to certain deeds, mortgages, promissory notes, and other instruments in writing, the false making of which would be punished as forgery, and, being separately tried, he was found guilty, and sentenced to imprisonment in the penitentiary, from which judgment he appeals.
Affirmed.
L. W Colby and H. Scofield for appellant.
Charles W. Mullan, Attorney General, and Chas. A. Van Vleck Assistant Attorney General, for the State.
The facts on which the indictment was found, and which the evidence on the trial tended to prove, may be briefly stated as follows: Appellant was the patentee of a conical tin clothes washer or clothes pounder, and was engaged with the other defendants in Washington county in selling agency rights therefor. The method of procedure was to sell an agency right for $ 1,000, giving the agent a contract entitling him to sell other agency rights at the same price, retaining $ 500 commission on each right thus sold, and also to sell the clothes washers at $ 5 each, procuring the machines from appellant at a cost of $ 1 each. The agent was also authorized by his contract to employ subagents, not exceeding three, to sell the machines on the same terms. Appellant and his codefendants represented to those negotiating for agency rights that large profits had been made by others under similar contracts; that large numbers of the machines had been sold in different localities, and had given satisfaction; that the machine was the only successful conical tin clothes washer; that it was made of tin of a certain excellent quality, and the like; that the agencies were sold to no one for less than $ 1,000 each in cash or guaranteed securities, and that the machines were sold for not less than $ 5 each in cash. For the state evidence was introduced tending to show that some of these representations were false, and that they were fraudulently made, with knowledge of their falsity. Many errors are assigned and argued with reference to the sufficiency of the indictment, the rulings of the court as to the introduction of evidence, the instructions of the court, and the sufficiency of the evidence to sustain the verdict. It will not be profitable to discuss all of the assignments noticed in the printed argument, but we will consider the fundamental questions, disposition of which will practically dispose of the principal contentions of appellant, and will cover the points specially urged upon our attention in the oral argument.
I. Many objections were made to the indictment by demurrer, which was overruled. The one most elaborately presented in different forms is that the offense which the defendants are charged to have conspired to commit, is not sufficiently described. The indictment was undoubtedly drawn with the purpose of charging a conspiracy to commit a felony, within the terms of Code, section 5059, the felony being the act of designedly and by false pretenses, or by privy or false token, and with intent to defraud, obtaining the signatures of any person to any written instrument the false making of which would be punished as forgery. Code, section 5041. The offense which defendants were thus charged as having conspired to commit was fully described in the indictment in accordance with the language of the Code defining it. Counsel for appellant contend that an indictment for falsely obtaining a signature, etc., must allege the obtaining not only of the signature, but the instrument itself, by false pretenses (State v. McGinnis, 71 Iowa 685, 33 N.W. 338), and that the indictment in this case is fatally defective for not containing such an averment. This contention, however, is fully answered by the suggestion that the indictment before us is not for falsely obtaining the signature, etc., but for conspiracy to commit a felony, and that the allegations as to the crime of falsely obtaining the signature by false pretenses, etc., are important only for the purpose of describing the conspiracy charged. It is well settled that it is not necessary in an indictment for conspiracy to commit a crime to describe the crime intended to be committed with the accuracy or detail essential in charging the commission of the crime itself, and that if, in the indictment for conspiracy the crime charged to have been intended is stated in accordance with the statutory description thereof, it is sufficient. State v. Grant, 86 Iowa 216, 221, 53 N.W. 120; State v. Ormiston, 66 Iowa 143, 148, 23 N.W. 370; State v. Ripley, 31 Me. 386; People v. Arnold, 46 Mich. 268 (9 N.W. 406); State v. Crowley, 41 Wis. 271 (22 Am. Rep. 719); Com. v. Eastman, 1 Cush. 189 (48 Am. Dec. 596). In other words, what is required in the indictment for conspiracy to commit a crime is a correct designation of the crime as known to the common law or specified by statute, as the case may be, which the defendants are charged to have intended to commit, and not the allegation of acts which, if committed, would have constituted such crime. Where the conspiracy is charged to have consisted in the agreement to do an act not in itself criminal by illegal means, then the illegal means contemplated must be described; but, where the offense consists in the conspiracy to commit a crime, the means by which such crime is to be committed need not be alleged. State v. Grant, supra; State v. Bartlett, 30 Me. 132; People v. Clark, 10 Mich. 310; Thomas v. People, 113 Ill. 531. This is entirely reasonable, for the conspiracy might be completed without the means employed having been agreed upon, as the crime of conspiracy consists, not in overt acts done for the purpose of carrying out the conspiracy, but in the unlawful combination itself with the purpose of doing the unlawful acts. State v. Ripley, 31 Me. 386; State v. Crowley, 41 Wis. 271. The obtaining of the instrument itself would be essential in charging the completed crime of obtaining a signature by false pretenses, etc., but not essential in describing the crime which the defendants in this case were charged with conspiring to commit.
II. Another ground of demurrer was that the indictment on its face showed that it was not found within the statutory period of limitation, which, as to the crime of conspiracy, is three years. Code, section 5165. But Code section 5167, provides that "no period during which the party charged was not publicly resident within the state is a...
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