State v. Donahoe

• Citation: 78 Iowa 486,43 N.W. 297
• Parties: STATE v. DONAHOE.
• Decision Date: 15 October 1889
• Court: United States State Supreme Court of Iowa

78 Iowa 486

43 N.W. 297

STATE

v.DONAHOE.

Supreme Court of Iowa.

Oct. 15, 1889.

Appeal from district court, Cass county; GEORGE CARSON, Judge.

The defendant was indicted for the murder of one Lawrence Dolan. Upon a trial he was convicted of manslaughter, and sentenced to imprisonment in the state penitentiary for seven years. He appeals.J. C. Bryant, E. Willard, and L. L. Delano, for appellant.

John W. Scott, Co. Atty., and J. Y. Stone, Atty. Gen., for the State.

ROTHROCK, J.

1. There is no dispute that Lawrence Dolan is dead, and that he came to his death by a gun-shot wound inflicted by the defendant. The only question which the jury in the court below was required to determine was whether the homicide was excusable on the ground of self-defense. It appears from the undisputed facts in the case that Dolan was the owner of a farm of 240 acres in Cass county, upon which he, with his family, resided. The farm consisted of three contiguous 80-acre tracts, the length of each 80 being east and west. The house in which deceased and his family residedwas near the south line of the farm. One Barrett owned an 80-acre farm adjoining the Dolan farm on the north. Barrett and Dolan had differences in regard to the maintenance of a partition fence on a line between the farms. Their contentions led to litigation, which in one instance was carried to this court. See Barrett v. Dolan, 71 Iowa, 94, 32 N. W Rep. 189. Barrett leased his farm to the defendant, and the trouble in regard to the line fence continued between the deceased and the defendant. Under the decision of this court, the deceased was under obligations to maintain his part of a partition fence. He not only failed and refused to do so, but removed part of the fence already there. Donahoe, the defendant, used the greater part of the 80-acre farm for a cattle pasture, and in the year 1887 the defendant had his land adjoining the Barrett farm in corn. When Donahoe, the defendant, turned his cattle in the pasture they crossed the line and went into Dolan's corn. Dolan distrained them, and the defendant brought an action of replevin before a justice of the peace, and a trial was had, and Dolan was defeated. As was perfectly natural, there was enmity between the parties. A few days after the trial the defendant's cattle crossed over the line, and the defendant and his hired man, named Buchanan, started after them on horse-back, each one of them taking a gun. They went over the line, and down on Dolan's land by a traveled track which runs through his farm north and south. They did not see any cattle, and were informed by one of Dolan's hired men that the cattle had gone south. Donahoe and Buchanan turned and rode back. Dolan and his son saw the men on horse-back, and pursued or followed them up to and over the line between the farms. After crossing the line, Donahoe dismounted from his horse, and as the deceased approached the line, Donahoe warned him to stop. The deceased crossed over the line, and while rapidly advancing towards Donahoe, and at a distance of some 80 feet, Donahoe fired his gun, the charge of which struck Dolan, from which he almost instantly died.

If the above were all the facts attending the tragedy, the defendant would undoubtedly be guilty of a criminal homicide. But there was evidence in the case which entitled the defendant to have presented to the jury the law upon excusable homicide by reason of self-defense. A large number of witnesses for the defense testified that the reputation of deceased was that of a quarrelsome, vindictive, and dangerous man, and that the defendant was a peaceable, quiet, and unoffensive citizen. Indeed, there is no conflict in the evidence upon these questions of character or reputation, and the evidence further shows that deceased had frequently made threats against the defendant. The hired man of defendant, who was with him when the tragedy occurred, and who was jointly indicted with the defendant, testified that a few days before the killing he went to Dolan's home at the instance of the defendant, and asked him if he would fix his fence, and that Dolan made no promise to do so, but said that if Donahoe or any of his agents came into his place they must come armed, and prepare to look out for themselves. He also made threats to take the life of Donahoe to others. All these threats and warnings were communicated to Donahoe, and it was in evidence that when Donahoe started to go to Dolan's field for his cattle he stated that he would take “his gun to defend himself if he had to; that he was afraid to go without it.” And the hired man, Buchanan, testified that as Dolan approached the line Donahoe warned him not to cross it, and that Dolan, who was advancing rapidly, did not halt, and that as he advanced he raised his right arm, and pointed what appeared to be a revolver at Donahoe, and that he held this revolver in that position when Donahoe fired his gun. The son of Dolan was with him, and he testified that his father had no revolver,...