State v. Hanlon
| Decision Date | 06 April 1909 |
| Citation | 100 P. 1035,38 Mont. 557 |
| Parties | STATE v. HANLON. |
| Court | Montana Supreme Court |
Appeal from District Court, Park County; Sydney Fox, Judge.
Barney Hanlon was convicted of murder in the second degree, and appeals. Reversed and remanded.
Fred L Gibson, A. P. Stark, W. B. Rodgers, and J. H. Tolan, for appellant.
Albert J. Galen, Atty. Gen., and W. L. Murphy, Asst. Atty. Gen., for the State.
The defendant was convicted of murder in the second degree. He appealed from the judgment and an order denying his motion for a new trial.
The homicide occurred about 11:30 o'clock on the morning of June 6, 1907, at Jardine, in Park county. A few minutes prior to its occurrence the defendant was walking along the principal street of the village in company with one Acklemire. He was armed with a pistol, which he carried in a scabbard partly covered by his coat. The weapon was not concealed otherwise, and the fact that he had it was apparent to a casual observer. As he and his companion passed along the street, he observed the deceased standing on the opposite side, and, going across, accosted him, telling him that he desired to speak to him a moment. Thereupon the two walked back together, passing to a point near the rear of a small building which fronted upon the street, and stood apparently engaged in friendly conversation. They were in plain view to Acklemire, who stood at a point further along the street, and to others on the opposite side. What was said by them was not heard by any witness. As they approached this point the deceased handed to defendant a small bottle of whisky. He retained the bottle, but did not drink. In a few moments one of the state's witnesses, named Menisto, familiarly called "Dago Joe," went across the street to them. He handed to the deceased a switch, or stick, described by him and other witnesses as about as thick as a man's little finger and about three feet long, at the same time stopping to drink from the bottle, which in the meantime had been returned by defendant to the deceased. He then went away. He had no conversation with either of the two except to say to the deceased as he handed him the stick, "That is your whip; I don't need that." To this the deceased replied, "All right, Joe." This witness had stated that a few minutes before the appearance of the defendant he had met the deceased with the stick in his hand and deceased had given it to him. Another witness stated that the deceased was in the habit of carrying in his hand something of the character of the stick in question. After Menisto left, the conversation between the defendant and deceased continued. It was without gestures or loud talk. There was nothing in the manner of either of them to indicate that they were not on friendly terms or that the subject of their conversation involved any feeling. The two stood side by side for some moments, the deceased switching or digging into the ground with the stick. He then shifted his position somewhat so as to face the defendant, continuing to use the stick as before. While he was apparently looking toward the ground, the defendant drew his weapon and fired at him. This shot was apparently ineffective. The deceased began to back away, or as some of the witnesses stated, began to run away. After a short interval the defendant fired two more shots in rapid succession, one of which struck the deceased just above the heart and passed through his body, killing him almost instantly. The defendant remained standing where he was when the deceased fell, holding his weapon in his hand in a menacing attitude toward some of those who ran to the assistance of the deceased, and applying vile epithets to them. There is some evidence to the effect that during the morning and at a previous time the defendant had made threats against the life of the deceased. The deceased had no other weapon than the small stick. This narrative of the occurrence is gathered from the testimony of the state's witnesses. It is controverted in some important particulars, as will appear from the following narrative of the defendant himself and his witnesses.
On the preceding day the defendant had been engaged in repairing a ditch belonging to a Mrs. Wellcome, who resided in the village. This ditch is a short distance to the east. Late in the evening, as he was about to finish the work, some one set off a charge of dynamite or giant powder in the ditch, with the double purpose, as defendant thought, of damaging the ditch and killing himself. The explosion occurred immediately after the defendant had crossed the ditch in the pursuit of his work, and at the point where he crossed. He at once went away, and spent the night at Mrs. Wellcome's home. Mrs Wellcome owned, or had an interest in, a saloon in the village which was run by two men named Wells and Oliver. During the night some one had, in the language of the witnesses, "shot up the place," doing a good deal of damage. Early on the next morning the defendant went with Mrs. Wellcome and others to see the extent of the injury. After Mrs. Wellcome went away, and while he and the others were still there, they heard two or three explosions in the direction of the ditch. Presently he and Acklemire, who was present, determined to go and ascertain the result of the explosions, and, if possible, the cause also. This was the mission on which the defendant was bent when he observed deceased on the opposite side of the street, and, as he and some of his witnesses stated, was accosted by him and asked for an interview. What was said and done by the two after that time was stated by the defendant as follows: "Lannon says to me, I says, 'Yes, Tom, I remember about it;' and he says to me, 'Barney Hanlon, if you don't quit the old-timers and come to our side, with me and Hector McDonald and Billy McQuillan and Ryan and Zane, we will blow you to hell.' *** He says to me, 'Barney Hanlon, if you don't quit, if you don't give up going with the old-timers and pull away from them, myself and Hector McDonald and Billy McQuillan and Ryan and Zane will blow you to hell.' I told him I would never quit the old-timers and go with an old _____ of a _____ like that, and go with 'cabbage thief' Ryan. *** He says, 'Barney Hanlon, you remember what the old man said to you on the 15th of May outside the barber shop?' and I says, 'Yes, I remember all about it.' *** At the time I handed this bottle to Lannon, Lannon says to me, 'Barney, you wait a while; we have done with you fellows, and I will blow you to hell myself.' He made this remark to me three different times. He also said to me, When Joe Menisto, or 'Dago Joe,' came around the corner of the barber shop, he had a club with him, and he gave the club to Tom Lannon, and Tom Lannon handed him the bottle, and when Lannon got the club he straightened up and gave the club, the heavy end of the club, two or three rubs, and he gave two or three rubs on the floor, and he came down double-handed and struck me right on the forehead. Just before he struck me with this club he told me if I didn't quit running around with the old-timers and go to their side, then they would blow me to hell. After he struck me with the club he took the club in one hand and came after me, and made a dart into his pocket for a gun. When he struck me I started back, and he struck me such a blow that it staggered me back, and I went and pulled my gun and went to shoot him. I fired three shots; at the time I fired these shots I thought the man had me about dead. I saw right at once that Ryan's vengeance was pulling on me, and what he said about blowing me up at the barber shop; and I went to work and tried to save my life. He also spoke about the Wellcome saloon, and said to me, 'You see what happened to Mrs. Wellcome's saloon last night?' and I replied I saw the damage it done; and he says, 'Barney Hanlon, if you don't quit running around with the old-timers, we will blow you to hell.' *** I have referred several times to what Mr. Ryan said to me at the barber shop. I had this talk with Mr. Ryan on the 15th of May. They were trying a case at the barber shop on that day. Tom Davey was the defendant in that case, and on that day I was working for Tom Davey. The conversation I had with Mr. Ryan was about 12 or 13 feet southeast of the barber shop, and it was about half past 1 o'clock. Mr. Ryan told me that I was bringing men in to jump mining ground. He told me if I didn't stop bringing men around jumping ground that he would have me blown up or have my head broken with a club." Again, in referring to the attempt to blow him up on the Wellcome ditch, he made the following statement: On cross-examination he stated that, while in the act of backing away from him, the deceased drew a pistol, and when h...
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