State v. McGee

• Court: Iowa Supreme Court
• Writing for the Court: GRANGER
• Citation: 46 N.W. 764,81 Iowa 17
• Decision Date: 10 October 1890
• Parties: STATE v. MCGEE.

81 Iowa 17
46 N.W. 764

STATE
v.
MCGEE.

Supreme Court of Iowa.

Oct. 10, 1890.

Appeal from district court, Marion county; J. H. HENDERSON, Judge.

Indictment and verdict for murder of the first degree, and from a judgment of imprisonment for life the defendant appeals.

[46 N.W. 764]

Hayes Bros., for appellant.

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

GRANGER, J.

The defendant on trial, Joel McGee, was jointly indicted with John McGee, Sr., John McGee, Jr., John

[46 N.W. 765]

Noe, and David Cooper, for the murder of Noah Kelso on the 31st day of January, 1888. John McGee, Sr., owned a 40-acre tract of land lying south of, and adjoining, the farm of Noah Kelso, known as the “Hogland Forty.” The 40 was mainly timber with some slough or wild grass land, and on the north side of the tract was some hay belonging to McGee. On the 31st day of January, 1888, John McGee with his sons, John and Joel, John Noe, William Pierce, John Williams, and Monta Watters, with three teams, went to the Hogland 40 to draw hay. In the forenoon the hay was taken to Marysville about 1 1/2 miles distant. At noon the parties all took dinner at McGee's. In the afternoon they returned to the 40; John McGee, Sr., and Joel each taking a gun,--Joel a double-barreled shotgun, and his father a rifle. The parties, except Joel and his father, went to the stacks to load the teams, and Joel and his father stopped in the timber to hunt. As the parties with the teams were on their way from the stacks they discovered in the corn belonging to McGee, and on his premises, colts belonging to Kelso, and they stopped their teams, and undertook to catch the colts. In this effort, they came upon or discovered Bud Kelso, a son of Noah Kelso, who was with his team and sled on the Hogland 40 as he (Bud) says, coming from his own land with wood, but as others say, with a hay-rack, boom-pole, axe, and a chain, without any wood, and going south, instead of north. Some harsh and threatening words were exchanged, as to which there is dispute, and Bud Kelso, with his team and the loose horses, went through a gap in the fence, which had been made by Bud Kelso before he was seen by the McGees, onto the land of Noah Kelso. Bud Kelso drove home with his team, the horses were unharnessed, and Bud and his father each mounted a horse and rode towards the gap in the fence; Bud taking with him a large butcher knife, and his father a loaded musket. Dan Kelso, another son of Noah, went on foot, as he says, and unarmed, but as to this there is a dispute, there being testimony that he carried a revolver. At or near the gap in the fence there was an altercation. Neither of the Kelsos on the return went onto the Hogland 40. Some four or five shots were fired, and Noah Kelso was killed, and his body lay about 125 yards north of the Hogland 40 on his own land. An examination disclosed seven gunshot wounds: One in the left arm, near the shoulder, one in the left lobe of the lungs, one in the breast, one in the back, passing through the left kidney, one near the scrotum, the ball being extracted from the hip, one on the right side, about the fourth rib, and one in the head, the ball entering the lower part of the left ear, and being extracted from the neck. It is not questioned in this court but that Kelso was killed by one of the McGees; that is, by the father, John McGee, Jr., or Joel. But it is earnestly contended that the fatal shot was not fired by Joel, nor was he in any sense responsible or liable therefor. It is a practically undisputed fact in the case that Noah Kelso was a man who often threatened to use fire-arms, and did in some cases discharge them at or towards persons, but without effect, and that he was very quarrelsome. It also appears that the defendant was a quiet and peaceable citizen.

1. Lum Richmond was a witness for the defendant, and on his direct examination he said he had known the defendant for eight years, and that his reputation for being a quiet and peaceful citizen was good. On cross-examination he was asked as to his being engaged in...