State v. Flynn , 28 Iowa 26 ( 1869 )

Dillon, Oh. J.

This conviction cannot be sustained. The District Court should have granted the appellant’s motion for a new trial on the ground that the evidence did not warrant the verdict.

The statute is, that if “ two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the person or property of another,” they shall be punished, etc. Rev. § 4408.

The indictment charges a conspiracy to injure the dwelling-house of one Margaret Flynn. She was the wife of John Flynn, and was living with him in the house in question. It was also occupied by the mother of Jonn Flynn, who is a brother of the appellant. The house was built upon blocks. The legal title to the lot on which it was erected was in John. The great weight of the testimony, if not, indeed, the whole body of it, is to the effect that the house in question was built and owned by the appellant, Owen Flynn, with the right to remove it. The criminal act complained of is the attempt of Owen to remove the house by raising it up with screws and putting blocks under it.

Without taking up the space to review the evidence, let it suffice to state that it clearly satisfied us that what Owen did in preparing to remove the building was done in the exercise of an avowed legal right, the existence of which the testimony conduced strongly, if not conclusively, to establish, and that it was not done in pursuance of a conspiracy wrongfully to injure, with malicious or fradulent intent, the property of another.

Keversed.