The Leon reporter. (Leon, Iowa) 1887-1930, 1903-10-29

resulting IN her pregnancy as early as
July, 1901, if not one or more earlier
pregnancies and that exposure had been
avoided by miscarriages brought about
through advice or procurement of Ham
mond. The language of the letters
written in July, August and September
Indicate Enthusiastically that somewhere
about August goth, 1900, Miss Stone
acting with the advice and consent of
Hammond went to Lamont for the pur-
pose of procuring miscarriage and
such purpose being accomplished Ham
mond drove to Lamont and took the
young woman to her home. There is,
however, an entire lack of any fact or
circumstance in the record showing the
place where or the person by whom the
unlawful act was committed. 1t is
true that Lamont was then the place of
appellants residence and one witness
testities to having seen Miss Stone
about that time upon the street in front
of the sanitarium. But these circum-
stances alone do not arise to the digni-
ty of evidence tending to connect
appellant with the crime then commit
ted. The lack of evidence is empha-
sized when we recall the principle that
the alleged conspiracy must be shown
by testimony outside of the declara-
tions and statements which are sought
to be admitted as having been made by
a co-conspirator. The combination or
confederation is pre-supposcd and must
be established by other evidence before
the jury can rightfully give any con-
sideration to such statements.
See Virgins VS. Leonard, 8 Iowa 1914.
In the absence therefore of any proof
tending to point out the appellant as
having assisted in producing the abor-
ton of August 1900 and of any collision
or conspiracy between him and Ham
mond until January II, 1901, we are con-
strained to hold that the admission of
letters preceding,the latter date was
error. 1t must be remembered that the
appellant was alone upon trial and that
the matter admitted in evidence con-
sisted of unsworn statements made by
another person not in his presence or
hearing and not addressed to him. The
rule which allows the statements of one
co-conspirator to be given in evidence
against another is a marked exception
to the general rule which excludes
hearsay testimony, and applies only
where those statements are made pend
ing the conspiracy and in furtherance
of its unlawful purpose. Statements
made by a conspirator before the con-
spiracy was formed or after it has been
accomplished, fall within the general
rule and are not admissible except as
against the person making them. Such
is the doctrine which has been repeat
edly announced in this state, and so far
as we are aware, of universal prevail
ence in all courts administering justice
according to the common law.
State VS.. Nash, Iowa BAT.
Johnson VS.. Miller 63 Iowa $50.
State VS.. Weaver, 81 Iowa, 730.
State VS.. Arnold, 4S Iowa, 566.
Taylor County US. Standley 10 Iowa
GU.
State VS.. Grant Sc Iowa ZIG.
Spies VS.. People 3 Am. S. Rep. Note.
The attorney general evidently appre-
ciating the force of these objections to
the testimony under consideration urges
that, even if inadmissible on tho theory
of a conspiracy, it was competent as
tending to show the intimacy of Miss
Stone with Hammond. The pertinency
Of this suggestion would be very appar-
ent We're Hammond on trial but such is
not the case. Appellant was being
tried for an act alleged to have been
committed in January, 1901 and proof of
another abortion produced in August.
1900 by some person unknown could
have no bearing upon his guilt Of the
particular crime charged, without other
testimony tending to show his guilty
connection with the earlier otfensc.
III. Referring further to the subject
OF the last preceding paragraph it may
be said that the prima facie showing of
conspiracy is first addressed to the
court alone, simply as governing it's
action in the admission of evidence, but
whenever such a prima facie case is
made, the final determination whether
such conspiracy did or did not exist
should be left to the jury.
| Taylor VS.. STANDBY supra.
State VS.. McGee 81 Iowa, II.
The court below gave the jury no in
struction upon this subject and no
specific direction as to how or to what
extent the letters of Hammond might be
taken into consideration in determining
| the question of defendants guilt. The
finding of a conspiracy was necessary
preliminary to the consideration Of the
letters for any purpose and we think an
instruction to that effect should have
been given.
NlSSlnS VS.. leonard y IOWA lGi.
". B. l.. Eilser, a physician testify
ing on behalf of the state, was permit
ted to say that shortly prior to August
Z, 1900, Hammond applied to him to ex-
amino Miss Stone and determine
whether she was pregnant. and that
Hammond then asked the witness to
help him out Of the difficulty. On the
principle hereinbefore approved this
evidence should have been excluded.
This act on the part of Hammond was
long before the time when the testimony
indicates that the conspiracy, if any,
between Hammond and appellant was
formed. Indeed the very fact that
Hammond was applying to another ply
stefan is an affirmative indication that
at that date he had entered into no
arrangement With the appellant.
V. Certain witnesses for the state
were allowed to give testimony tending
to show that appellant had produced
other abortions upon other women than
Miss Stone. We have lately had occa-
sion to consider an admission of evil