Horbach v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 242
• Parties: J. P. HORBACH v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 242

J. P. HORBACH

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Dallas. Tried below before the Hon. Silas Hare.

The facts of this interesting case will be found carefully stated in the opinion of the Chief Justice.

Good & Coombes, for appellant.

1. The opprobrious epithets and reaching for a weapon were “acts,” and from these it did “reasonably appear” that it was “the purpose and intent” of deceased to kill, and if to kill, to murder. (Paschal's Dig., art. 2226.)

2. “The killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.” (Paschal's Dig., art. 2225.)

Why the former paragraph should require “a reasonable appearance from acts,” and this “that the acts done must show evidently,” &c., in order to justify, we are at some loss to determine, but we insist that the whole manner, words, and act of deceased, for the reason above given, showed that he “was in the act,” and it was his “intention” at the time to take life, and these can be accounted for on no other hypothesis.

3. “The attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death or some serious bodily injury.” (Paschal's Dig., art. 2230.)

It will not be questioned that there was an “attack upon the person” of appellant. Was this such as “produced” on his mind“an expectation or fear of death or serious bodily injury,” and was such expectation or fear “reasonable?”

These inquiries must be determined from appellant's standpoint with all the facts and circumstances that then surrounded him, bearing in mind that the language and attack of deceased were sudden and unprovoked, the want of time for cool reflection, and the impression upon a bystander, Wilson, that Thomas intended to shoot. (Shorter v. The People, 2 Com., (N. Y.,) 193; Harrigan & Thompson's Cases of Self-defense, 256, 266; Logue v. Commonwealth, 2 Wright, (Pa.,) 265; H. &. T. Self-defense, 269, 276; Maher v. The People, 24 Ill., 241; H. & T. Self-defense, 290, 292; Rapp v. Commonwealth, 14 B. Monroe, 615; H. & T. Self-defense, 293, 297; Philips v. Commonwealth, 2 Duval, 328; H. & T. Self-defense, 383, 388; Bohannon v. Commonwealth, 8 Bush., (Ky.,) 481; H. & T. Self-defense, 395, 405; Pridgen v. The State, 31 Tex., 420.)

The above cases are not referred to because directly in point, in fact but two of them, Phillips and Bohannon, in anywise approach it, but to show the opinions of different judges in regard to acting upon appearances of danger, their reasonings and conclusions under laws more stringent than our own.

The fifth, sixth, and seventh assignments are to rulings excluding evidence that deceased was in the habit of carrying deadly weapons and his character when drinking. This testimony was necessary to explain the extent of the “expectation or fear produced, and whether it was reasonable” or not. If he did not carry weapons, and was quiet and peaceable when drunk, appellant had no cause for fear of death or serious injury, and the shooting was murder. If he habitually carried them, was violent and dangerous, his right hand to the rear after the abuse and blows was a signal of danger no man could disregard, and the shooting justifiable. The character and habits of deceased form an important element of the res gestœ in such cases, and should have been admitted. The decisions are conflicting, but the weight of authority sustains our position. (Cases supra; Williams v. The State, 3 Hiesk. Tenn., 376; 1 Green's Crim. Rep., 255, 267; Franklin v. The State, 29 Ala., 14; The State v. Robertson, Addison, 246; Cotton v. The State, 31 Miss., 504; Harrigan & Thompson's Leading Cases Self-defense, 478-487; Ib., 487-492; and last, but not least, Thomas v. The State, 40 Tex., 41-43.)

Hancock, West & North, also for appellant, insisted that the jury was not properly formed, and argued ably and at length that error was committed in refusing to permit the defense to prove, under the circumstances shown, the fact that deceased had been in the habit of carrying deadly weapons shortly before his death, and his quarrelsome and dangerous character when intoxicated, citing Quesenberry v. The State, 3 Stewart & Port., 315; State v. Tackett, 1 Hawks, 210;Wright v. The State, 9 Yerger, 342.

George Clark, Attorney General, for the State.

ROBERTS, CHIEF JUSTICE.

The defendant was indicted for the murder of H. K. Thomas, found guilty of murder in the second degree, and his punishment assessed at six years in the State penitentiary.

The facts necessary to be mentioned to present the errors on the trial complained of were that Horbach and Thomas were perfectly friendly up to the time of the difficulty, which happened about 11 o'clock at night, in a ““sample room” in the city of Dallas, where and when there were present Boyle, one of the proprietors, and Duckworth, the bar-keeper, both of whom were behind the counter; Shock and Wilson, who were outside of the counter, as were also both Horbach and Thomas, both of whom were somewhat intoxicated and had taken, together with others, two drinks of spirits not long before the difficulty arose. Four of them had just played a game of pool, in which Thomas had lost, and treated the others. Upon asking his bill of the barkeeper, he was told that he owed for two rounds of drinks, Horbach being then at the front of the store. Thomas said he owed no such a damned thing. The bar-keeper said, “All right, Harvey;” and Thomas paid for one round of drinks, and said if any one said he owed for two rounds he was a damned liar. The defendant then came in, singing and dancing, with a watering-pot in his hand, and put it on the counter, when Thomas asked him if he (Thomas) owed for two rounds; and Horbach said, “Yes.” Thomas said, “It is a God damned lie,” and taking the wateringpot, threw it down violently and mashed it. Up to this point there is no material difference in the testimony of the witnesses, but as to the balance there were some differences, which are attributable, partly at least, to two being behind the counter and two being in front of the counter. That of the two in front, Shock and Wilson, was most favorable to the defendant, and was, in substance, that Thomas told Horbach that “he was a damned lying son of a bitch,” when Shock stepped up and told him that he (Shock) owed for the drinks. Thomas replied, “““That is too thin,” and told him to go away; and turning to the defendant, told him again, whoever says that he owed for two rounds, is a damned lying son of a bitch, at the same time gesticulating violently with his right hand, touching or striking Horbach in the breast. Horbach said, “Then you don't owe it?” Thomas again said to Horbach, “You are a damned lying son of a bitch,” still gesticulating as before in a violent, angry manner. Horbach said, “What do you mean?” perhaps twice, Thomas still repeating his accusations and gesticulations, when finally, stepping back his right foot, threw his right hand behind him, pushing back the skirt of his coat, (one of the witnesses says as if to draw a pistol,) when instantly Horbach presented his pistol with both of his hands, and firing, shot Thomas in the head, and killed him. Shock says that, being behind Thomas, he was shaking his head at Horbach. Wilson says that, being off to one side, he dodged and sat down, when he saw Thomas put his hand behind him. Bogle says that during the altercation he went into the front room, turned down some lights, came back, put some money in the safe, went behind the bar, and was talking to the bar-keeper about closing up, when the firing took place at the south end of the counter, the said witness being at the north end, and the counter being so high that he could not see the movement of the parties' hands in front of it. Shock went for a doctor. Wilson left the house as did the defendant, who was arrested that night in Wilson's room. There was evidence that Bogle and Duckwork were more friendly to Thomas than to Horbach. The doctor came and found no weapons on Thomas, and there was no further evidence as to whether he had weapons or not when he was shot.

There is no intention here to give the least intimation of opinion as to the weight of this evidence, as establishing one conclusion or another in reference to the guilt or innocence of the defendant. It is collated simply to show that there was evidence tending to prove one of two conclusions leading to different results, either that Horbach shot Thomas from a sudden motive of revenge for an unprovoked and gross insult, or under the belief that the gross insult was then being followed up by the act of making a deadly assault upon him with a weapon, endangering his life. The facts tending to the establishment of the latter conclusion (to what extent it is immaterial to consider now) were that Thomas, having a dispute with the bar-keeper about his liquor bill, became angry, and without any apparent cause turned the controversy about it from the bar-keeper to Horbach. The bar-keeper, Shock, and Horbach, all tried to pacify him, and let him have his own version of the matter. Still he persisted in fastening the controversy on Horbach, who was not concerned in it and was not even present when it commenced. Horbach treated the matter lightly at first, and when all the means that were tried could not divert him from making the issue with Horbach, he commenced treating the matter seriously, and asked Thomas what he meant. Thomas stepped back his right foot, and threw his hand behind him as if to draw a pistol. It may be a significant fact, as tending to show the known character of Thomas, that the persons there, seeing the matter becoming serious, did not interfere, except that Shock, having been once rudely repulsed by Thomas, stood off at some distance shaking his head at Horbach. This may bear two constructions,...