State v. Nolan

• Citation: 61 N.W. 181,92 Iowa 491
• Parties: STATE v. NOLAN.
• Decision Date: 12 December 1894
• Court: United States State Supreme Court of Iowa

92 Iowa 491

61 N.W. 181

STATE

v.NOLAN.

Supreme Court of Iowa.

Dec. 12, 1894.

Appeal from district court, Marshall county; N. B. Hyatt, Judge.

The defendant was convicted of the crime of murder in the first degree, and was adjudged to be imprisoned in the penitentiary at Ft. Madison at hard labor for the term of his natural life. From that judgment he appeals. Reversed.James Allison and O. Caswell, for appellant.

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

ROBINSON, J.

On the 5th day of October, 1892, one J. B. Hurto received injuries which caused his death a few days later. At that time the defendant was working for him as a farm laborer. At about 10 o'clock in the morning of the day named, Hurto returned from an absence of about 10 days in the states of Missouri and Nebraska, and was accompanied by a neighbor named Janes, who had been with him on the trip. Both were somewhat under the influence of intoxicating liquor. Soon after their arrival, the defendant, Nolan, came to the house from a field, where he had been at work, and drank whisky or brandy which was given him by Hurto and Janes. The three men drank together several times, and after a time Nolan was told to harness a team to take Janes to his home, which was something more than two miles distant. Hurto finally concluded to go with them, and the three started away together in a light wagon or buggy. All occupied one seat, Nolan driving. They took Janes home, all continuing to drink the liquor. After they had finished it, Hurto and Nolan left for their home, the latter driving, and both being somewhat intoxicated. Hurto is described as being “pretty noisy” at the time. The road they took to reach home led eastward from Janes' nearly three-fourths of a mile, thence northward three-fourths of a mile to Goodwin's corner, thence westward the same distance to a schoolhouse, thence northward about one-fourth of a mile to Hurto's house. At about 2 o'clock in the afternoon Nolan reached home, but without Hurto. In reply to a question of Mrs. Hurto, he said her husband was “down here a little way, laying on the road”; that he was not hurt; that the team ran away, the wagon was upset, the horses became detached from it, and that defendant had all he could do to hold them. She told him to go back and get Hurto, but he objected that he could not get Hurto into the wagon, and said, “Let the drunken fool lay there.” She then told the defendant to go to a neighbor's for help, and to bring Hurto home. The defendant drove away, and appeared at Janes' house at about 3 o'clock, and told him that the wagon had been upset, that Hurto had been thrown out and hurt, and that Nolan wanted Janes to help place Hurto in the wagon. The two men started for Hurto, but Janes says he understood Nolan to say that the accident occurred on the road south of Goodwin's, and that they did not go west of Goodwin's, and did not find Hurto. Janes went home afoot, and Nolan drove into a road which led from the road south of Goodwin's to a place called Rhodes. There he purchased a quantity of cider, and returned to Janes' house, reaching there after 5 o'clock, and reporting that he had not found Hurto. Janes then went with him, and they found Hurto lying on the side of the road, west of Goodwin's, placed him in the wagon, carried him home, and placed him in the barn. At nearly 10 o'clock at night they went for a physician, about 10 miles away. At midnight the physician arrived, and caused Hurto to be carried to the house, and examined him. He found bruises on his face, head, and body, that his spinal column was fractured, that his lower limbs were paralyzed, and that he was without sensation in his hands and arms. Some of the bruises might have been made with a man's boot. It is claimed by the state that defendant pounded Hurto, threw him from the wagon against a fence post, and kicked him, thereby inflicting the injuries which caused his death. It is the theory of the defense that the team became unmanageable by reason of the acts of Hurto while intoxicated; that it ran away, became detached from the wagon, which was overturned, and that both were thrown out, and that in that manner Hurto received the injuries in question.

1. The court charged the jury as follows: “Drunkenness does not disqualify a witness from testifying in court, provided he be sober at the time of testifying; but if he give evidence concerning an event at the time of the occurrence of which he was intoxicated, or under the influence of intoxicating liquors, such intoxication or degree of intoxication should be considered by you as a circumstance not affecting his credibility, but the probability of his correctly remembering what transpired while so intoxicated. And if in this case you find from the evidence that the deceased, James B. Hurto, was intoxicated at the time he received his injuries, or was to a considerable extent under the influence of intoxicating liquors, you will consider such fact, and its effect, if any, upon the probability of his correctly recollecting the events of which he spoke, and which have been introduced here as dying declarations, if you find that he did make such declarations.” The appellant complains of the words “not affecting his credibility,” as used in the following...