#### The State of Iowa, Appellee, v. John Gainor, Appellant.

1. Homicide: justification: self-defense: evidence. While a peace officer was expostulating with one of a crowd of drunken men, who was making considerable noise on the street, the defendant interfered as against the officer, and struck at him with his fist, and thereupon a scuffle ensued between the officer and the defendant, and when finally separated, and while the defendant held one of the arms of the officer, and another of the crowd the other, the defendant drew his revolver and shot the officer through the heart, causing his death immediately. *Held,*that the killing was without excuse, either upon the ground of self-defense or any other.

2. -: evidence. One of the witnesses for the state, who saw the affray from the window of his bedroom, testified that he got up as soon as he heard the noise of the crowd in the street, for the reason that one P. had told him that the crowd was out. Held, that the evidence was without prejudice to the defendant.

*2103. -: -: res gestæ. It was shown by the state that immediately after the shooting the defendant pointed his revolver at another peace officer, who had come to the rescue of the officer killed, and had struck the defendant and others with his cane during the encounter preceding the shooting. *Held,*that the evidence was competent as part of the *res gestes.*

4. -: -: declarations. The declaration of the defendant, upon going to the hotel where he lived, that he had killed a policeman, and wished he had -killed the other, *held*to he competent as an admission of the killing of the officer, and as showing his feelings towards him when the act was committed.

5. -: -: conduct of defendant Preceding conflict. The state was permitted to show that the defendant and his party were in a house of prostitution preceding the conflict with the officer on the street. *Reid,*that the evidence being competent, the fact that it would have the effect to prejudice the jury against the defendant was no reason for excluding it.

6. -: -. The fact that the deceased officer was in a club room the night before the shooting, and there drank intoxicating liquors, *held*to be too remote to have any bearing upon the cause of the affray upon the night of the homicide.

*Appeal from Plymouth District Court.*— Hon. Soott M. Ladd, Judge.

Tuesday, January 19, 1892.

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.*

Affirmed.

*Argo, McDuffie*& Deichmann, for appellant.

*John 7. Stone,*Attorney General, and *Thos. A. Cheshire,*for the State.

Rothbock, J.

I. It is conceded that the defendant shot and killed Samuel Hamilton at about twelve 1. Homicide: justification: self-defense: evidence. o’clock of the night of the twenty-fourth 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 *211and with, the consent of the city council. One Philip Eembe 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 barber shop, 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 Eembe, 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 actually engaged in the conflict with Hamilton, separated, and the defendant discharged a revolver at Hamilton, and shot bim through the heart, and he expired.

*212The 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 the 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 *melee.*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 of a policeman, and wished he had killed the other.” As we read this record, there was no excuse for the homicide, either upon the ground of self-defense or any other. The deceased was a peace officer, and when he expostulated with Eckert, because he was drunk and disorderly, the defendant was an aggressor when he interfered. Indeed, it was the right and duty of the officer to arrest the whole party; for, according to their own evidence, their intoxicated condition differed only in degree.

*213II. Certain objections are made by counsel for tbe defendant to rulings of tbe court on tbe evidence. 2. -: evidence. One of tbe witnesses for tbe state,' wbo ' ' saw the affray from the window of bis bedroom, was permitted to state that be got up as soon as be heard tbe noise of tbe crowd in tbe street, and that tbe reason why be got up was that one Priestly bad told him “that tbe crowd was out.” It is claimed this tended to prejudice tbe defendant in tbe estimation of tbe jury. Tbe objection was without merit. • “Tbe crowd was out,” and whatever-prejudice, if any, there might have been on that account, was shown by tbe actual fact that such was tbe case. Tbe reason given by tbe witness for getting up from bis bed added nothing to tbe fact.

III. It appears from tbe evidence that, immediately after shooting Hamilton, tbe defendant pointed bis 3. -: -: res gestæ. revolver at Eembe. It is claimed this evidence was improperly admitted. We think otherwise. It was essentially a part of tbe *res gestee,*and tbe court did not err in bolding that it was competent.

IV. It is also claimed that tbe court erred in permitting tbe state to prove what tbe defendant stated, 4. -: -: declarations. as above set out, at tbe hotel after be shot Hamilton. Tbe evidence was competent. It was a declaration of .the party charged in relation to tbe alleged criminal act, which tbe state bad tbe right to introduce, not only as an admission that tbe defendant killed Hamilton, but as showing bis feeling towards him when be did kill him.

V. Another objection is that one of tbe witnesses was permitted to state that tbe bouse in “Tbe 5. -: -: conduct of defendant preceding conflict. Addition,” above referred to, where tbe defendant and bis party went, was a bouse There is no merit in this of prostitution. objection. It was competent for tbe state to show tbe acts and conduct of tbe defendant and bis *214associates during the night previous to the tragedy. It is said that this prejudiced the jury against the defendant. This was no reason for excluding the evidence unless it was incompetent.

VI. Other objections are made to certain rulings on the admission and exclusion of evidence. One of' 6. -: -. them is that the defendant was not permitted to show that Hamilton was in a. club room the night before the tragedy, and that he-then and there drank intoxicating liquors. This evidence was entirely incompetent. It is not claimed that-Hamilton wás intoxicated at the time, and, if he had been intoxicated, it was too remote to have any bearing upon the cause of the affray on the night of the homicide. Another objection was made to the introduction of certain evidence tending to impeach one of the-defendant’s witnesses, by contradictory statements, made by him when he testified before the coroner’s, jury. It was claimed that the proper foundation was not laid to authorize the introduction of the impeaching-evidence. This is a mistake. The foundation was laid specifically as to time, place, and circumstance.

Lastly, it is urged that the court erred in the fifteenth, sixteenth, seventeenth, and eighteenth paragraphs of the charge to the jury. The ground of' objection is that the court made the defendant’s right of self-defense depend upon how the situation surrounding the parties appeared to Hamilton, the deceased, and that, if Hamilton used no more force than appeared to him to be necessary, then the-defendant was not excused for defending himself. We* have not thought it necessary to set out these instructions at length in this opinion. The charge to the jury-is quite voluminous, and, when considered together, it-is not vulnerable to any valid objection. It correctly defines the rights of the parties upon the question of' self-defense. It must be remembered that the deceased was a peace officer, whose duty it was to preserve public *215order during tlie night, and that the defendant was one of a party who were engaged in disturbing the peace, and was liable to arrest.

Upon an examination of the whole record, we are satisfied that there was no error in any ruling made by the court during the trial, and that the judgment is just, and should be aeeirmed.