Horn v. State

• Citation: 102 Ala. 144,15 So. 278
• Parties: HORN v. STATE.
• Decision Date: 10 April 1894
• Court: Alabama Supreme Court

15 So. 278

102 Ala. 144

HORN v. STATE.

Supreme Court of Alabama

April 10, 1894

Appeal from circuit court, Marengo county; James T. Jones, Judge.

Paul Horn was convicted of assault and battery, and appeals. Affirmed.

Upon the trial of the cause, Isaac Rosenberg, being introduced as a witness for the state, testified that he kept a store in Faunsdale, Ala., and that, before the finding of the indictment, the defendant came to his store, a little before dark, and asked the witness for five dollars, and without explaining to the witness what five dollars, or anything about the same, immediately began whipping him with a buggy whip; that thereupon the witness ran towards the back part of the store; that witness saw defendant draw his pistol as he started to run; that, while he was running, he heard a pistol shot, and felt that he was struck; that he did not see the pistol shot by the defendant; that he saw no one shoot at him, and did not know who shot him; that, after he was shot he fell down, and while in the kitchen, in the back of the store, he saw the defendant shoot once at his wife, who was standing on the front porch of his store. The defendant objected to this testimony as to the witness, seeing the defendant shoot at his wife, because it was illegal irrelevant, and immaterial, and duly excepted to the court's refusal to exclude the same. The same objection was raised to this witness' testifying that, after having shot at his wife, the defendant tried to shoot his clerk, who had hidden behind the counter; and, to the refusal of the court to exclude this testimony, the defendant also duly excepted. Upon the examination of one Mack Walker for the state, he testified that, on the night of the difficulty between Rosenberg and the defendant, he had a conversation with the latter a short time before the difficulty, and thereupon the state asked the witness to state what was this conversation. The defendant objected on the ground that the corpus delicti of the case had not been proved, and that the confessions and declarations of the defendant were not admissible at that time. The court overruled the objection and to this ruling of the court the defendant duly excepted. The same objection was raised, and the same ruling made, in reference to the testimony of Tom Collins. The testimony of these witnesses is sufficiently stated in the opinion. Upon the introduction of J. C. Brown as a witness for the state he testified that he saw Mrs. Rosenberg the next day, and she had one eye bruised, and it was bloodshot. The defendant moved to have this testimony excluded, because it was illegal, irrelevant, and immaterial, and duly excepted to the court's overruling his motion. The testimony in behalf of the defendant tended to show that, on going to the store of Rosenberg, he asked to be refunded the five dollars which Rosenberg had wrongfully taken from one of his laborers the evening before; that Rosenberg denied having taken the said money, and ordered the defendant out of his store; that, upon repeating his demand for the money, Rosenberg struck the defendant, and that Rosenberg's son, wife, and his clerk were holding him and beating him when a pistol was fired; that the first shot went up in the roof of the house; that, as the defendant was being held by Rosenberg's son, wife, and clerk, Rosenberg came from the back part of the store, and was advancing upon him with a knife, and, when he refused to stand back, he (the defendant) fired on him. This testimony was contradicted by the testimony of the state.

The portions of the court's general charge to which exceptions were reserved are copied in the opinion. The defendant requested the court, among other things, to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (26) "If Isaac Rosenberg kept a public storehouse in which goods and merchandise were sold to any and every one, and if the defendant went to the storehouse of said Rosenberg on business, and if the defendant was free from all fault in bringing on any difficulty with said Rosenberg, and if said Rosenberg made an assault, together with his wife and clerks, upon the defendant, and if the defendant had had no reasonable means of retreat, or fired the shot at said Rosenberg under the belief that he had no reasonable means of retreat, or that, in retreating, he was in imminent peril of his life or limb, or if, at the time, said Rosenberg was advancing upon him with a dangerous weapon, and defendant was held by one of the clerks of Rosenberg so that he could not retreat, he had the right, under the law, to use enough force to repel the said assault; and if the jury believe that it was necessary, under the evidence, for the defendant to kill said Rosenberg in order to protect himself, then the jury ought to acquit the defendant of an assault with intent to murder, and may find the defendant not guilty as charged in the indictment." (25) "If the defendant went to the store of Isaac Rosenberg, and entered the same peacefully, and did nothing to produce a difficulty, and Rosenberg thereupon assaulted the defendant, and the defendant shot at Rosenberg while said Rosenberg was assaulting the defendant, and the defendant was held, and was not able to retreat, and, while so held, shot at said Rosenberg under the honest belief that he was in danger of great bodily harm or of imminent peril to life or limb, the defendant had a right to shoot, and the jury must acquit the defendant." (14) "If the jury believe from the evidence that the defendant went to the store of Isaac Rosenberg on business, and that Isaac Rosenberg assaulted the defendant without provocation, the defendant being without fault in bringing on the difficulty, and that the defendant was in great danger of great and serious bodily harm, or that the defendant believed honestly that his life was in imminent danger, and that to retreat would greatly imperil his life or limb, then the defendant had the right to protect himself so far as necessary to repel the assault; and if it was necessary, in order for him to repel the assault, for him to shoot said Rosenberg, the defendant is not guilty, and the jury ought to acquit him." (15) "If, from the evidence, the jury believe that the defendant went to the store of Isaac Rosenberg on lawful business, and there got in a fight with said Rosenberg and his family, without doing anything to provoke, and being without fault in bringing on, the difficulty, and if, while in said fight, it became so that he could not retreat without great peril and imminent danger to his life, or if he honestly believed that his life was in imminent danger, or that he was liable to be subjected to grievous bodily harm by retreating, the law does not make it his duty to retreat, and he would not be guilty if he had killed the said Rosenberg under such circumstances, and ought to be acquitted." (N) "Charge the jury that they should not find the defendant guilty unless the evidence against him was such as to exclude to a moral certainty every supposition (or hypothesis) but that of his guilt." (B) "Charge the jury that the testimony of a witness for the prosecution, who is shown to be unworthy of credit, is not sufficient to justify a conviction without corroborating evidence; and such corroborating evidence, to avail anything, must be a fact tending to show the guilt of the defendant." (I) "Charge the jury that, when the evidence is chiefly circumstantial, that innocence should be presumed until the case is proved against the defendant, in all its material circumstances, beyond any reasonable doubt, and that the evidence ought to be strong and cogent to find the defendant guilty as charged."

C. K. Abrahams, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

McCLELLAN J.

The appellant, Horn, was indicted and tried for assaulting, with intent to murder, one Isaac Rosenberg, and convicted of an assault and battery upon said Rosenberg. The said Isaac was the first witness examined in the cause. His testimony tended to show that the defendant assaulted and beat him, and drew a pistol, whereupon the witness ran, and that, while running, he heard the report of a pistol, and was stricken by a pistol ball, but he did not see a pistol discharged by the defendant or any one else. It was, we think, clearly competent for the prosecution to strengthen the inference afforded by this evidence, to wit, that the defendant discharged the pistol, by the further testimony of this witness to the effect that, on looking around immediately after being shot, he saw the defendant shoot at his (the witness') wife, and that soon afterwards defendant "tried to shoot Tennerson, witness' clerk, who had hidden behind the counter." Disconnected from all other evidence in the case, this testimony went to show, not only that the defendant shot at Mrs. Rosenberg, and attempted to shoot the clerk,-which facts, of themselves, would ordinarily have been irrelevant,-but that he it was who shot Isaac Rosenberg, as charged in the indictment.

2. But there is another aspect of the case in which this testimony as well as certain other facts adduced against defendant's objection, was relevant and competent. It was in evidence that Horn conceived that the Rosenbergs, whom he referred to as "those Jews," had wrongfully taken five dollars which belonged to him from one of his "hands" (laborers) a day or two before the occurrence laid in the indictment; that he went to their place of business and residence on the occasion of the assault, declaring that "he was going down there and get his money back from those Jews, or wear his buggy whip out on them;" that...