State v. Gainor

• Decision Date: 19 January 1892
• Citation: 84 Iowa 209,50 N.W. 947
• Parties: STATE v. GAINOR.
• Court: Iowa Supreme Court

84 Iowa 209

50 N.W. 947

STATE

v.GAINOR.

Supreme Court of Iowa.

Jan. 19, 1892.

Appeal from district court, Plymouth county; SCOTT M. LADD, Judge.

The defendant was indicted for murder in the first degree. He was tried upon the indictment, and convicted of the crime of manslaughter, and sentenced to imprisonment in the penitentiary for eight years, from which sentence and judgment he appeals.Argo, McDuffie & Reichmann, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

ROTHROCK, J.

1. It is conceded that the defendant shot and killed Samuel Hamilton at about 12 o'clock of the night of the 24th day of November, 1888, at the city of Le Mars, in Plymouth county. Hamilton was at that time acting as a special merchants' police, by and with the consent of the city council. One Philip Rembe was a constable, and on the night of the homicide he was acting as night police, and was, during the night and up to the time of the tragedy, acting in concert with Hamilton. They were not together all the time, but it appears that they had apprehensions that the residents of the city might be disturbed in the night, and they were on the alert to guard against any breaches of the peace. Some six or seven men, including the defendant, commenced a drunken carousal in the city during the early hours of the night. They entered a club–house by the back door or through windows, and occupied it for a time, and then repaired to a house in what is called “The Addition,” and returned to the club–house and drank and caroused. One of the party, named Harter, while in the club–house, was struck by the defendant with such violence as to give him what is called a “black eye.” It appears that it was known that this party of men was around the town. After leaving the club–house, the party was going along the streets towards a barbershop where one of them was employed. They were very boisterous. Their language was loud, vulgar, and profane. One of them, named Eckert, was particularly noisy. He was leading the party, and came up to where Hamilton stood on the street. Hamilton expostulated with Eckert, and told him if he did not keep quiet he would be compelled to arrest him. He repeated the request that Eckert should cease the disturbance, without effect. At about this time the defendant in some way interfered, and the parties came together, and were in a scuffle, when Rembe, the constable, appeared armed with a walking–stick, and took part in the affray in aid of Hamilton. In a very short time the parties, who had clinched and were actully engaged in the conflict with Hamilton, separated, and the defendant discharged a revolver at Hamilton, and shot him through the heart, and he expired.

The theory of the defense was that Hamilton, without any cause, made an assault on the defendant, and struck him upon the head a number of times with a policeman's “billy,” and greatly injured him; and that the defendant fired the shot in the honest belief, as a reasonable man, that it was necessary to do so in defense of his life, or to save himself from great bodily injury. It is not claimed in argument in behalf of defendant that the verdict is not supported by the evidence; and we may say that the jury was fully warranted in finding from the evidence that the defendant made the first assault on Hamilton by striking at him with his fist. The defendant was the friend of Eckert, with whom Hamilton was expostulating. Immediately upon the striking of the blow by the defendant, the parties closed, and there was a general melée. The drunken crowd were resisting Hamilton, and he used his “billy” with considerable effect upon the defendant. At about this time Rembe appeared on the scene, and he testifies that the defendant was then holding one of Hamilton's arms, and one of the others of the party, whom the witnesses designated as the “Sioux City gambler,” held his other arm, and that Rembe struck them repeated blows on their heads with his cane, and caused them to release Hamilton, and that immediately thereafter the defendant fired the fatal shot. It is also in evidence that after the tragedy, and after the defendant went to the hotel where he lived, he said “he had killed the son of a bitch...