
    State of Iowa, Appellant, v. Joe T. Law, Appellee
    CONSPIRACY: Adultery. An agreement to commit an offense which can only he committed hy the concerted action of two persons, i. e., adultery, does not constitute an indictable conspiracy.
    
      Appeal from Polk District Court. — Joseph E. Meyer, ' J udge.
    October 2, 1920.
    A demurrer to an indictment charging the defendant with the crime of conspiracy to commit adultery with one Clara Watts was sustained, and the State appeals.—
    
      Affirmed.
    
    
      H. M. Earner, Attorney General,, F. G. Davidson, Assistant Attorney General, for appellant.
    
      G. G. Putnam, for appellee.
   Stevens, J.

The ground of the demurrer is that the in dictment which charged the defendant, a married man, with conspiring, confederating, and agreeing with uñé Clara Watts tu meet together in a room of a hotel in Des Moines, Iowa, for the purpose of committing adultery, does not allege a criminal offense. The consummation of the act is also alleged. No third party is involved. The prosecution is based upon Section 5059 of the, Code of 1897.

The precise question presented has not been passed upon by this court, but has been before the courts of other jurisdictions. So far as we are advised, they have uniformly held that an agreement to commit an offense which can only be committed by the concerted action of two persons does not amount to a conspiracy. Shannon v. Commonwealth, 14 Pa. 226; Miles v. State, 58 Ala. 390; State v. Huegin, 110 Wis. 189 (85 N. W. 1046); Thomas v. United States, 156 Fed. 897; United States v. Dietrich, 126 Fed. 664; United States v. New York Cent. & H. R. R. Co., 146 Fed. 298; United States v. Burke, 221 Fed. 1014. To the same effect, see 2 Wharton on Criminal Law (11th Ed.), Section 1602.

The crimes most frequently referred to as coming within the class designated are adultery, bigamy, incest, and dueling. An implied recognition of this rule is contained in State v. Clemenson, 123 Iowa 524. Agreements between a victim and another person to produce an abortion, and for the transportation of a female from one state to another for the purpose of prostitution, are cited by the attorney general as analogous in principle to the case at bár; but the court, in United States v. Holte, 236 U. S. 140, in which the accused was charged with having conspired with another person for her transportation from Illinois to Wisconsin for the purpose of prostitution, specifically recognized the principle above stated. The act of producing an abortion may be committed by a pregnant woman upon herself, without the concurrence or concerted action of another person,, but the crime of adultery is possible only by the concerted action of two persons. In such case, the agreement between the parties is a part of the offense itself. If, however, the agreement charged is between several persons, and is to cause the offense to be committed by others, or between a member of the combination and a person outside of it„ it may amount to a conspiracy. State v. Clemenson, supra. The agreement charged in the indictment is limited to the defendant and the woman with whom the unlawful act was committed. There was no participation therein, by a third person. In harmony with the uniform course of judicial decisions, we hold that the indictment does not charge crime. The demurrer was, therefore, properly sustained.— Affirmed.

Weaver, C. J., Ladd and Arthur, JJ., concur.  