It appears that in April, 1888, the defendant Cole Grant came to Webster county, Iowa,, and on the thirteenth of the same month made a contract under the name of Cole Grant & Co. with Breece & Breece of Ft. Dodge to manufacture a combination slat and wire fence, which he had the right to manufacture and sell in that county. He procured from said firm ‘a certificate that they had entered into such a contract with Cole G-rant & Co. He then employed a. number of men, among them the defendant, McNeal, to establish agencies among the farmers, authorizing said agents, by written and printed contracts, to build or sell the manufactured fence aforesaid, which they were to procure from Breece & Breece, and which was. to be furnished them at certain prices per rod, depending upon the height of the fence desired and the-number of wires used therein. On all fences sold by Breece & Breece at the factory, there was to be credited to the township agent, wherein the fence was to be used, the sum received in excess of the prices provided for in the agent’s contract. The fence was to be sold so-
1. Conspiracy: indictment: sufficiency. I. It is insisted that the indictment in this case is. insufficient in that it does not charge that the defendants. conspired “to obtain” the notes, and also- ' that the mutual “intent” of the def end-ants is not averred. The indictment charges that “the said. Cole Grant and A. W. McNeal, on the tenth day of May, 1888, and at various other-days to this grand jury unknown, in the county aforesaid, did unlawfully, willfully and feloniously conspire and confederate together for the unlawful, malicious, and felonious purpose, and with fraudulent and malicious intent and purpose, wrongfully, feloniously and unlawfully to obtain from” (certain parties therein named and others) their names and signatures to “certain written and printed promissory notes and evidences.
Code, section 4087, provides: “If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the person, character, business, or property of another, or to do any illegal act injurious to the public trade, * * * or to commit any felony, they are guilty of a conspiracy,” etc. Code, section 4073, provides: “If any person designedly and by false pretense, or by any privy or false token, and with intent to defraud, obtain from another any money, goods, or other property, or so obtain the signature of any person to any written instrument, tbe false making of which would be punished as forgery, he shall be punished by imprisonment in the penitentiary not more than seven years, or by fine not exceeding five hundred dollars and imprisoned in the county jail not exceeding one year.” And .section 4104 of the Code defines a felony thus: “A felony is a public offense which is, or, in the discretion of the court, may be, punished by imprisonment in the penitentiary.”
The indictment fully and clearly charges the defendants with the crime of conspiracy to commit a felony. The claim made by the appellants that the indictment should in terms charge that the defendants
2. -_._. means used for commission o? crime. II. It is said that the indictment is defective, in that it fails to fully disclose the means by which the-crime was to be accomplished. It is well settled in this state, and is the law in many states, that, where the indictment, charges a conspiracy to do an act which is a crime, it is-sufficient if it be described by the proper name or terms by which it is generally known in law. It is only where the charge is that an act in itself not ciiminal is-sought to be accomplished in an illegal manner, or by illegal means, that the means used for its accomplishment must be averred. State v. Potter, 28 Iowa, 554; State v. Savoye, 48 Iowa, 562; State v. Ormiston, 66 Iowa, 148; 4 Amer. and Eng. Encyclopedia of Law, pp. 624-626.
3._._. tenses!-6" III. It is contended that the indictment fails to-charge a'statutory offense, because the words “designedly, and by false pretenses,” which are used in our statute defining the crime of obtaining property by false pretenses, are not used therein. The language of the indictment is that the-crime was accomplished “by the making of false state-
Nor is it material that the word “designedly” is not found in this indictment. It is charged therein that the defendants conspired “for the unlawful, malicious, and felonious purpose, and with fraudulent and malicious intent and purpose, * * * to obtain,” etc. The meaning of the words “intent and purpose” used in the indictment is the same as “design.” “Design” is defined as “purpose or inten
4. __._. duplicity. IV. It is said that the indictment is bad for duplicity; that it charges several offenses. This claim is not well founded. It is clear that only one 0££eiise fs intended to be charged, and the trial was had upon that theory. True, it is not necessary to charge the commission of the overt act which was the ultimate object of the conspiracy. Commonwealth v. Judd, 2 Mass. 329; Commonwealth v. Warren, 6 Mass. 74; State v. Buchanan, 5 Har. & J. 317; State v. Noyes, 25 Vt. 415. But it has been held proper to charge the overt act in aggravation of the offense, as the conspiracy continues during its commission. 3 Greenleaf on Evidence, section 95; State v. Mayberry, 48 Me. 218; 4 Am. and Eng. Encyclopedia of Law, 624, 625; 2 Whart. Crim.Law [8Ed.], sections 1382, 1383; State v. Ormiston, 66 Iowa, 146. The rule in cases where the indictment charges conspiracy to commit a crime, and also the overt act, is that it does not necessarily follow that the indictment was intended to charge more than a conspiracy. And this is especially true where, as in this case, the indictment does not show a “design to claim a conviction for the injury committed, though the evidence should fail to sustain the charge of conspiracy,” It does not appear, in this case, that it was intended by alleging the overt act to put the defendants on trial therefor, nor was such the result.. Hence it is not vulnerable to the objection made as to duplicity. State v. Ormiston, 66 Iowa, 146.
6. -: -: overt act charged merger. VI. Again it is contended that as the indictment charges a conspiracy, and also the execution of the overt act, the conspiracy is merged in the higher offense. From what we have already said in division five of this opinion, it is clear there can be no merger in this case. This-
VII. Another objection made to the indictment is that it does not set out the means used to defraud. The appellants concede “it would be sufficient, if the charge was a conspiracy to commit a felony, to name it in the words of the statute, without setting out anything further.” We have held that this indictment does charge a conspiracy to commit a felony under the statute, and in such cases the means used to defraud need not be set out. 2 Wharton, Crim. Law [8 Ed.], section 1343; 4 Am. and Eng. Encyclopaedia of Law, 625, 626'.
7. -: -: naming persons injured. VIII. Complaint is made that the names of the persons injured are not all set out in the indictment. A number of names are given, followed by the words, “and divers other persons of said county.” Afterwards it is alleged that by so conspiring and confederating together, and by making “to said” (naming parties) “and other persons to this grand jury unknown,” etc. It was not incumbent on the state to unnecessarily repeat the words ‘ ‘to the grand jury unknown.” The omission to use them in the first instance was not such a defect or imperfection as tended to the prejudice of the substantial rights of the defendants upon the merits. There was sufficient alleged in the indictment to indicate clearly the offense and the person charged. Code, section 4086.
8. -: -: evidence: declarations of co-conspirators. IX. It is urged that the court erred in receiving evidence of the individual acts and declarations of the alleged conspirators before a foundation was first laid by establishing prima facie the fact of the existence of the conspiracy. The general rule undoubtedly is that a prima facie case of conspiracy must be made before
9. -: -: -: X. Error is assigned in the admission of evidence touching the acts and declarations of the defendants against each other. Some of these acts and declarations occurred and were made prior to the time the conspiracy charged could possibly have existed, and others after the purpose and object of the conspiracy had been accomplished. We cannot refer in detail to all these cases, but a reference to some of them will enable us to state the law which we consider applicable thereto.
One Durand, a justice of the peace, was permitted to testify, over the defendants objection, as to statements made by Grant, a defendant herein, on a preliminary hearing before said justice, in a case wherein the co-defendant herein, McNeal, was accused of the crime of forgery growing out of some of these same transactions. This hearing was had after all the notes had been taken in Webster county, and the aim of the conspirators accomplished. The witness Waterbury testified to certain conversations with the defendant
XI. The witness, Healy, was permitted to testify to statements made by Grant, after both of the defendants had been arrested, with reference to a note taken by defendant McNeal of one Talcott, and who was then attempting to get it back. This conversation occurred three weeks after the note was given, and after the purpose of the conspiracy had been accomplished. For the reasons heretofore given, the evidence was not admissible as against McNeal.
XIII. The court, at the instance of the state, gave to the jury the following instructions:
11. —: proof: instructions to jury. “The fact of conspiracy need not necessarily be established by direct and positive evidence, but maybe proved and established by .circumstantial i evidence. If, from the acts and conduct of the defendants, as shown by the evidence and by the circumstances and transactions admitted in evidence, the nature ofthe connection between the defendants, and the relation in which they stood to each other in such transactions, the nature of the business in which they are engaged, and the part taken by each of them in the several transactions and delivery of the notes, you were satisfied beyond a reasonable doubt, and believe as reasonable men, that they were working and acting together with the common object and purpose ofPage 230obtaining said notes by means of false and fraudulent pretenses and representations, in pursuance of a combination or prearranged plan, then you should find that the conspiracy or combination between them existed, and is established.”
The first exception taken to it is that the words, “and believe as reasonable men,” operate to qualify the preceding words, to the detriment of the defendants. The words objected to, it seems to us, clearly add to what precedes them; that is, literally read, the jury are not only required to be “satisfied beyond a reasonable doubt,” but they must also, in addition thereto, “believe as reasonable men.” Technically speaking, the wording of the instruction adds a further requirement to that legally necessary to authorize the jury to find the defendants guilty; hence the defendants ought not to object because the state is required to do more to make a case than the law requires.
12. _. intent iSsSoüons to jury. XIY. It is also objected that the instruction does not include the thought of the “intent to defraud.” The instruction charges that if the defendants “were working and acting together, with the purpose of obtaining the notes by false and fraudulent pretenses,” etc., this sufficiently meets the objection made.
XY. The appellants maintain that the second instruction given by the court at the instance of the state was error in assuming a state of facts not existing. We need not set out the instruction. An examination of this record discloses the fact that there was evidence which justified the giving of the instruction.
Exceptions are taken and urged to the giving of other instructions. We, however, discover no error in the action of the court in that regard.
XYI. Finally, it is insisted that the evidence is not sufficient to sustain this verdict. Inasmuch as this case must be reversed, for reasons already indicated, and as