Hoover v. State

• Citation: 33 S.W. 337
• Parties: HOOVER v. STATE.
• Decision Date: 16 October 1895
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

33 S.W. 337

HOOVER v. STATE.

Court of Criminal Appeals of Texas.

October 16, 1895.

Appeal from district court, Colorado county; T. H. Spooner, Judge.

Tuck Hoover was convicted of murder in the second degree, and appeals. Reversed.

Kennon & Adkins, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HURT, P. J.

The appellant in this case was convicted of murder of the second degree, and his punishment assessed at 20 years' confinement in the penitentiary. The record contains 106 pages of closely-written matter. It is unnecessarily voluminous, containing a great many immaterial things. If the state's theory be correct,—and it is very cogently supported,—appellant was guilty of murder of the first degree. Appellant relied upon self-defense, bottomed alone upon his own evidence (he having testified in the case). The state does not concede that his version of the facts attending the homicide is correct, but contradicts him by at least two eyewitnesses, who swore to facts which place him in the attitude of an assassin, and, in support of these witnesses, refers to his confession made to Bridge and Reece. But, conceding that defendant's version is correct, the state replies that he is estopped from pleading that his life or body was in danger, because he did that which, if not intended, was in its very nature calculated, to induce the deceased to do just what he did do, and that appellant must have known and did know that his own violent conduct caused the deceased to act as he did, and this was known to appellant before he shot. A.'s life is threatened by B. A. arms himself with his pistol, and goes into the house of B., pistol in hand, ready for immediate use, and remarks to him: "I understand that you intend to kill me." B. moves his hand to his side. A. shoots, and kills him. Under this state of case, B. would have been excused if he had drawn and fired. But what in fact was appellant's intention when he entered the saloon, or why or for what reason did he kill deceased? It is true, he states that deceased threw his hand to his side, and that he was moving towards the counter, and that he feared that his purpose was to obtain a pistol. Concede all this. Concede that appellant believed his life in danger, that in fact deceased was attempting to procure a pistol for the purpose of killing appellant, and that appellant so understood his conduct. Still his own violent conduct was not only calculated to induce deceased so to act, but was the natural result of the conduct of appellant. No rational man could have expected anything else than a resort to deadly weapons. And while it may be true that appellant had good reason to, and did, from the conduct of deceased, apprehend danger to his life, etc., yet he knew that his own acts had caused the danger. But why did appellant kill deceased? He answers this question by deliberately stating that he did not kill deceased because of the insulting language towards his female relative, but because he (deceased) had threatened to kill him. If this be true, all that deceased did ceases to be a factor in self-defense. Why? Because the acts of deceased did not induce appellant to kill him, he being killed because he had threatened to kill appellant. We have therefore this simple proposition: A. threatens to kill B. B. arms himself, goes into the house of A., and kills him because he had threatened his (B.'s) life. There is neither...