State v. Tebo

Decision Date08 April 1964
Docket NumberNo. 51028,51028
Citation127 N.W.2d 646,256 Iowa 449
PartiesSTATE of lowa, Appellee, v. Oliver TEBO, Appellant.
CourtIowa Supreme Court

Donald V. Doyle, Sioux City, for appellant.

Evan Hultman, Atty. Gen., of Iowa, John H. Allen, Asst. Atty. Gen., Edward F. Samore, County Atty., Woodbury County, for appellee.

HAYS, Justice.

Defendant was charged and convicted of conspiring with one Floyd Labor to commit a felony, to-wit: assist a felon to escape, in violation of Section 719.1 Code of Iowa, I.C.A.

Defendant, Floyd Laber, Jerold Peterman and others were prisoners in the Woodbury County Jail and confined in the same cell block. On or about September 8, 1962, the officials in charge of the jail conducted a 'shakedown' of at least a part of the jail including the cell block where defendant was confined. As a result thereof, hacksaw blades were found in and about Floyd Laber's cell and upon his person. Nothing was found on or about defendant's person or cell. The charge of conspiracy was filed against defendant but not against any of the other prisoners.

The errors assigned are in the main, directed to the alleged erroneous reception of evidence offered upon behalf of the State.

Conspiracy, the crime charged, consists of a combination or agreement to do the thing charged. The corpus delicti or body of the crime is the agreement to do the illegal act, to-wit, assist a felon to escape. No overt act is necessary nor need the object of the agreement be accomplished. State v. Hartman, 213 Iowa 546, 239 N.W. 107; State v. Tedd, 196 Iowa 292, 194 N.W. 184; 15 C.J.S. Conspiracy § 36; 11 Am.Jur. Conspiracy, sec. 6. It might be said that no jail break occurred nor did any felon escape.

I. Error is assigned in the reception of testimony given by Jerold Peterman called as a witness for the state. He stated, over objection, as to overhearing a conversation between defendant and Laber relative the procuring of hacksaw blades to be used in an escape from the jail. He also testified to conversations with the defendant regarding the pending jail break. Complaint is made that the statement of conversations heard by the witness was hearsay and conclusions. We find no merit to this contention. This testimony as to conversations with the defendant and conversations between defendant and Laber constitutes direct evidence of the existence of an agreement or conspiracy and was competent. 22A C.J.S. Criminal Law § 756a.

II. Error is assigned as to testimony of Sheriff Rodberg as to statements made to him by Laber following the shakedown. These statements were made in the absence of the defendant and were to the effect 'he and Tebo were getting out'. They were admitted over the objection that it was hearsay. It is conceded by the State that such statements were hearsay but it is claimed that such were properly admitted as being part of the res gestae.

Laber is named in the Information as being a co-conspirator with the defendant. The effect of this testimony is to prove the conspiracy, defendant's connection therewith, by a co-conspirator by statements made by him out of the presence of the defendant. It has long been the rule in Iown that neither the nature nor existence of a conspiracy can be established by acts or declarations of one conspirator in the absence and without the knowledge of the other. State v. Manning, 149 Iowa 205, 128 N.W. 345; State v. Tedd, 196 Iowa 292, 194 N.W. 184. 22A C.J.S. Criminal Law §§ 767d and 763. There appears to be an exception to this rule of statements by a co-conspirator in the absence of the other. Such statements when made in the furtherance of the conspiracy are admissible against the accused. 22A C.J.S. Criminal Law §§ 774 and 775. An examination of the record clearly shows that the mere statement that 'Laber and Tebo were going to escape' is under no possible theory an utterance in furtherance of the conspiracy. It has also been held that an admission by a co-conspirator after he has been apprehended is not in any sense in furtherance of the criminal enterprise; it is rather in frustration of it. Fiswick v. U. S., 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196. While the...

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2 cases
  • State v. Moritz, 62991
    • United States
    • Iowa Supreme Court
    • June 18, 1980
    ...§ 719.1, The Code. The State did not have to prove any overt act in furtherance of the agreement. Compare State v. Tebo, 256 Iowa 449, 450, 127 N.W.2d 646, 647 (1964), with § 706.1, The Code 1979. Because an agreement is the primary element of a conspiracy charge, the nature of the agreemen......
  • Marriage of Shepherd, In re
    • United States
    • Iowa Supreme Court
    • September 21, 1988

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