
    State of Iowa v. A. W. Brown, et al., Appellants.
    1 Former Acquittal of the charge of compelling defilement — Code, section 3688 — is no bar to prosecution for conspiracy to injure the person of the same woman, etc., — Code, 4087 — though both indictments rest on the same facts.
    2 Privileged Communication. A minister may testify as to voluntary statements made to him by one accused of crime, in justification of himself.
    
      Appeal from Washington District Court. — Hon. I). Ryan, Judge.
    Wednesday, October 2, 1895.
    The defendants were convicted of the crime of conspiracy, and each was adjudged to be imprisoned in the penitentiary at Ft. Madison for the term of three years. From that judgment they appeal.
    
    Affirmed.
    
      
      H. M. Eicher for appellant Brown.
    
      J. F. Henderson for appellant Fernald.
    
      Milton Eemley, attorney general, for the state.
   Robinson, J.

The defendants are A. W. Brown and P. A. Fernald. The indictment on which they were tried and convicted charges them with the crime of conspiracy, committed one-fourth of a mile southwest of Wellman, in Washington county, on or about the twenty-fourth day of July, 1890, “to injure the person of one Etta Jones, and to do an act injurious to the public morals.” The indictment further charges that the defendants “verbally agreed that -said P. A. Fernald should procure said Etta Jones, and, in the night time, take her to a place where said Brown should meet them, and keep himself concealed while said Fernald should have intercourse with said Etta Jones, after which said Brown would make himself known, and, by threats to publish the same, induce the said Etta Jones to submit to sexual intercourse with said Brown; that said Brown and Fernald then and there, wrongfully and feloniously, did make an assault upon the body and person of her, the said Etta Jones, and said Brown, with force, carnally knew her, and did injure the said Etta Jones, and did an act injurious to the public morals.”

I. To the indictment above set out the defendants entered a plea of not guilty, and, in writing, pleaded a former acquittal. That plea was based upon a trial and acquittal on an indictment which reads substantially as follows: “The grand jury of the county of Washington, Iowa, accuse P. A. Fernald and A. W. Brown of the crime of compelling a woman to be defiled against her will, committed as follows: “The saidP. A. Fernald and A. W. Brown, on July 24, 1890, in the county of Washington, Iowa, did unlawfully and feloniously, and against her will, take one Etta Jones, and, with force, menace, and duress, compel her, the said Etta Jones, to be defiled by him, the said A. W. Brown, and said P. A. Pern aid; and A. W. Brown did then and there, unlawfully and feloniously, by force and menace, threaten her, the said Etta Jones, that unless she would surrender up her person to the said A. W. Brown, and be by him defiled and carnally known, he, the said A. W. Brown, would circulate defamatory and scandalous reports, charges, and stories of and concerning her, the said Etta Jones, and, by force, menace, and duress, did put said Etta Jones in fear, and against her will, feloniously and unlawfully, did then and there compel her, the said Etta Jones, to be defiled and carnally known.” There was a trial on that indictment, which resulted in the taking of the case from the jury by the court. An appeal was taken by the state, and determined by an opinion reported in 88 Iowa, 554 [55 N. W. Rep. 584.] To the plea of former adjudication the state filed a demurrer, which was overruled. As one. of the grounds of the demurrer, it was stated, in substance, that the plea did not show an acquittal of the crime of conspiracy. Notwithstanding the ruling on the demurrer, the court refused to permit the defendants to introduce in evidence the record of the trial alleged to have resulted in the adjudication pleaded, and instructed the jury that there was nothing in the plea of former adjudication for them to consider. Of that ruling and instruction the appellants complain. It was within the power of the court to change its ruling during the trial, and it is only important to consider the rejection of the evidence and instruction to the .jury on their merits, and we need not determine whether the ruling on the demurrer was correct. We are of the opinion that the evidence rejected did not show a former adjudication. It is true, it contained a copy of the indictment on which the former trial was had; but that charged the offense of compelling a woman to be defiled against her will, under section 3862 of the Code, while the defendants were on trial for the offense of conspiracy, under section 4087 of the Code. The offenses are entirely separate and distinct, although those involved in this and the former case grew out of the same transaction. The indictment in the former case charged the compelling of the defilement, — an offense which could have been committed without the aid of a conspiracy. The indictment in this case charges the crime of conspiracy, — an offense which could have been committed even though its object had not been accomplished. The crime is completed when the conspiracy is formed. State v. Savoye, 48 Iowa, 565. The indictment for conspiracy charges the commission of the act which formed the object of the conspiracy, and thus sets out matter which appeared in substance in the former indictment. But it is common, although not necessary, practice to set out the act for which the conspiracy was formed, when it has been committed, in aggravation of the offense charged; yet, when that is done, it does not follow that anything more than the conspiracy was designed to be charged. State v. Ormiston, 66 Iowa, 146 [23 N. W. Rep. 370]. In this case it is clear that no claim for conviction on account of the overt act is made.

II. The appellants complain of the ruling of the court in permitting a minister of the gospel, named Potter, to testify to a conversation he had with the defendant Fernald. It is claimed that the conversation was privileged, under section 3643'. of the Code, which contains the following: “No * * * minister of the gospel nor priest of any denomination shall be allowed in. giving testimony to-disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.” Potter resided in Wellman. Fernald, who appears to have been a church member, knew him, but was not a member, nor a regular attendant, of his church. After the affair of the defendant® with Miss Jones had become known, in May, 1892,, Potter and Fernald casually met at a railway station,, and, while waiting for a train, had the conversation in question. Each asked the other where he was going, and Fernald stated that he was going to Sigourney, on account of his trouble, and asked Potter if he li&d heard of it. On being answered in the affirmative, he proceeded to give his version of it, in part. The account included his relations with Miss Jones, and the steps which led to their sexual intercourse, and appears to have been intended as a partial justification of his conduct. It did not include any reference to the alleged conspiracy and defilement. What lie thus said was not of a confidential nature, and was not told for the purpose of obtaining the advice or assistance of the minister, and the latter was properly required to repeat it as a witness. After giving his side of the case, Fernald asked Potter his opinion in regard to certain matters which he stated, and for spiritual assistance and comfort; and those matters were treated by the court as privileged, and no testimony in regard to them was required. It is proper to say, in this connection, that Fernald voluntarily testified to facts more damaging to his interests than anything stated by the minister. We find no error in the rulings of the court in regard to the testimony of the latter.

III. We fail to discover any prejudicial error in the proceedings, as shown by the record and submitted to us. The evidence tending to show the guilt of the •defendants is ample to sustain their conviction, and no cause for reducing the punishment of either, as fixed .by the district court, is shown. The judgment of that court is therefore affirmed.  