statute was intended to provide for a the difficulty, which happened about case where there was an antecedent and eleven o'clock at night in a sample-room secret purpose to commit the act, not in the city of Dallas, where there were for casual and sudden affrays when the present, Bogle, one of the proprietors, injury was done in the heat of strife, and Duckworth, the barkeeper, both and where there was no direct evidence of whom were somewhat intoxicated, and of any such intent. who had taken together with the others two drinks of spirits not long before the difficulty arose. Judgment of General Term, affirming conviction reversed, and new trial granted. Opinion by Miller, J. MURDER. SUPREME COURT OF TEXAS. Horback v. The State. Decided May 14, 1875. On a trial for homicide, the defence in justification of the killing may be shown, 1. That the accused knew that his assail ant was a man who would use a deadly or dangerous weapon in a quarrel; 2. That he had reason to fear that the deceased was armed, and 3. That the Four of them had just played a game of pool, in which Thomas had lost, and treated the others. Upon asking the barkeeper for his bill he was told that he owed for two rounds of drinks (Horback then being at the front of the store). Thomas said he owed no such thing. The barkeeper 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 d -d liar. Horback then came in singing and dancing, carrying a water pot, which he placed on the coundeceased made certain movements inditer. Thomas asked him if he, Thomas, cative of drawing a deadly weapon. "It behooves men who are assaulted with asked for two rounds, and Horback said violence, in defending themselves to act"yes," Thomas said "It is a lie," and with promptness and force, because it is taking the watering pot threw it down known that men who fight with weap-violently and broke it. Up to this point ons, and who usually have them ready there is no material difference in the tesfor use, are not to be trusted to get an advantage in the combat." "It then the character of the assailant in any case has helped to form a reasonable belief in the mind of the assailed that his life was in danger, when the act alone would fail to do it, the jury should in some way be informed of the character of the assailant as well as his act to enable them to understand that the belief was a reasonable one.” A peremptory challenge of a juror, after he has been placed on the jury, cannot be sanctioned. The court may order him to stand aside or be excused for some good reason shown at the time. timony of the witnesses, but as to what followed there were some differences, which are attributable, partly at least, to two witnesses being behind the counter, and two in front of it. That of the two in front, Shock and Wilson, was more favorable to the defendant, and was in substance, that Thomas here used to Horback very indecent and offensive language, 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 said he owed for two rounds was-the deceased here used very indecent and offensive language, at the same time gesticulating violently with his right hand, and touchThe facts necessary to be mentioned ing or striking Horback on the reast. to present the errors on the trial com- Horback then said " "then you don't owe plained of, were that Horback and Thomas it." Thomas again used to Horback were perfectly friendly up to the time of foul and insulting language, still gesticu The defendant was indicted for the murder of Harvey K. Thomas; found guilty of murder in the second degree, and sentenced to six years in the State penitentiary. ner. lating as before in a violent angry man-his own version of the matter. Still he persisted in fastening the controversy on Horback said "what do you mean?" | Horback, who was not concerned in it, twice, perhaps. and not even present when it commenced. Then Thomas, still repeating his accusa- Horback treated it lightly at first, and tions and gesticulations, and finally put-when all means that were tried could not ting back his right foot, he threw his right divert him from making the issue with hand behind him, pushing back the skirt Horback, he commenced treating the matof his coat (one of the witnesses says as ter seriously and asked Thomas what he if to draw a pistol), when Horback pre-meant. Thomas stepped his right foot sented a pistol with both hands, and back and threw his hands behind as if to firing, shot Thomas in the head and draw a pistol. It may be a significant killed him. fact as tending to show the known charShock says that being behind Thomas acter of Thomas, that the persons there he was shaking his hand at Horback. seeing the matter becoming serious, did Wilson says that being off on one side, he not interfere, except that Shock being dodged and sat down, when he saw once rudely repulsed by Thomas, stood Thomas put his hand behind him. Bogle off at some distance shaking his hands at says he was behind the counter talking to Horback. This may bear two constructhe barkeeper at the north end of the tions, either that they did not think it counter when the firing took place at the necessary to interfere, or that they did south end, the counter being so high not think it consistent with their own that he could not see the movements of safety to interfere with Thomas any furthe parties' hands in front of it. Shock ther. went for the doctor, who came and found no weapon on Thomas, and there was no further evidence whether he had weapons or not when he was shot. There was evidence that Boyle and Duckworth were more friendly to Thomas than to Horback. Abstract of opinion.-These facts show that there was evidence tending to prove one of two conclusions leading to different results; either that Horback 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. For the purpose of adding additional weight to the evidence tending to show Horback acted under the impression, and had reasonable grounds to believe that Thomas was in the act of making a deadly assault upon him, the defendant, by his counsel, sought to prove by questions to witnesses, that Thomas was in the habit of carrying deadly weapons, and that when intoxicated he was a quarrelsome and dangerous man. These questions being objected to and ruled out by the Court, the defendant excepted as appears in the bills of exception on the record. The question is was such evidence admissible for such purpose as an element of defence. The facts tending to the establishment "Evidence in legal acceptation includes of the latter conclusion were: that Thomas all the means by which an alleged matter having a dispute with the barkeeper of fact, the truth of which is submitted about his liquor bill, became angry, and to investigation, is established or diswithout any apparent cause turned the proved." controversy about it from the barkeeper to Horback. The barkeeper, Shock and Horback all turned to pacify him and let him have "By competent evidence is meant that which the very nature of the thing to be proved requires as fit and appropriate proof in the particular case." The thing sought to be proved in the tion with which an act is done by him, case is that Horback had reasonable and are therefore a part of the res gesto, grounds to believe, and did believe that when pertinent to the act sought to be Thomas then intended, and was in the explained. Their office in evidence is act of attempting to kill him with a adjective, as auxillary to a substantial deadly weapon. fact to which they are pertinent, and Now with the facts shown in the testi- without which they are irrelevant and mony as to the condition and position immaterial. They are helps to the underof the parties up to the moment before standing in construing human conduct. the shooting, what other facts would be The mind cannot reject or disregard required as peculiarly fit and proper to be them. They, and all like helps, ever sworn by Horback to induce that reasonable belief? Certainly the most fitting and appropriate additional facts tending to induce such reasonable belief would be that Thomas had a pistol on his person, back where he put his hand, and that he was a man that would use it when intoxicated and mad, especially in a difficulty which he himself had provoked. have been and ever will be elements in the formation of belief as to what a man designs by an act to which they are pertiuent. It behooves men who are assaulted with violence, in defending themselves, to act with promptness and force, because it is known that men who fight with weapons, and usually have them ready for use are not to be trusted to get an advantage in the combat. Thomas' character for violence and his habit of carrying arms, with Horback's If then the character of the assailant knowledge of them, might determine in any case has helped to form a reasonaHorback's guilt or innocence in acting as ble belief in the mind of the assailed promptly as he did. Thomas' intoxication, his anger, his persistently pressing the difficulty on Horback without cause, his violent character, and his habit of carrying arms, would all be appropriate facts, if they existed, to throw light upon and give significance to his movements in stepping back and throwing back his hand. Taken separately, and in the abstract, they are meaningless and immaterial; taken together they may be pregnant with meaning, as shown by the conduct of the two witnesses, Wilson and Shock, who had seen Thomas' motion of his body and his hand. that his life was in danger, when the act alone would fail to do it, the jury should in some way be informed of the character of the assailant as well as his acts to enable them to understand that the belief was a reasonable one. Otherwise he might act in his defence. on such reasonable belief, and the jury, not helped by a knowledge of the assailant's character to understand the import of his acts would find the accused guilty of murder for having acted without reasonable grounds for believing his own life was in danger, when in fact he had such ground, and acted on such belief. This being an important fact, is in some cases necessary to be known by the jury to enable them to come to a proper conclusion as to the state of the mind of the accused just at the time of the killing; how and under what circumstances it is admissible in evidence. A nervous character for violence dependent upon his irascible temper, overbearing disposition and reckless disregard of human life is as much a part of himself as his judgment, discretion, sight, hearing, strength, size, activity or age, any one of which may be a It may be deduced from the authorimaterial fact to give a correct under- ties that the general character of the destanding of his conduct, and the inten- ceased for violence may be proved when it would serve to explain the actions of defendant a reasonable apprehension or the deceased at the time of the killing; fear of death or some serious bodily inthat the actions which it would serve to jury. 3d. That the defendant resorted explain must be proved before it would to all other means to prevent the injury. be admissible in evidence; that if no such 4th. That the deceased was killed while actions were proved, as would serve to in the very act of making such unlawful explain, its rejection when offered in evi- and violent attack; and unless all form dence would not be error, and that if of these propositions affirmatively appear rejected when a proper predicate has in evidence the defendant cannot be jusbeen proved for its admission, it is held tified on the grounds of an unlawful and to be error. violent attack upon his person." It is true the law throws upon the The 2d proposition in the charge party killing the responsibility of acting quoted is not contained in the article of soon enough to save himself from bodily the Code to which the other three relate, injury, such as mayhem on the one hand, At 2228, Paschal's Dig. By that artiand on the other hand the risk of firm-cle it was intended to provide that when ness and discretion to wait long enough any unlawful and violent attack, other until some act is done by the deceased at than one which manifests the intention the time of the killing, by which a jury of the deceased to murder or maim, the can be be satisfied, considering all the defendant is required to resort to all surrounding circumstances and the par- other means of prevention before killing ties concerned, that the defendant has his assailant, because in such an attack reasonable grounds to believe and did be- it is presumed that there may be time lieve, that he was then in impending and opportunity to resort to other means. danger of being murdered or maimed by But as provided for under the preceding the assailant. And although the attack section, 2226, where, at the time of killmay be unlawful and violent, if the acting some act has been done by the dedone by the deceased indicate a less de- ceased, showing evidently an intention gree of personal injury than killing or to commit the offence" (murder or maimmaiming, then before the killing can be ing,) then and there, and in that event fully justified or excused it must be the party thus attacked need not resort shown that all other means were resorted to other means before killing assailant, to for the prevention of the injury and because it is presumed in such a case the the killing must take place while the per-party's safety depends upon his prompt son killed is in the very act of making action in killing his adversary. such unlawful and violent attack. chal's Dig. Act 2226, 2228. Pas 66 This confusion from blending the two rules might have been obviated by giving the 3d charge asked by the defendants counsel, which was refused by the court only upon the ground that it was deemed to have been "substantially given." The very important distinction as made by the Code, depending upon the degree of injury intended by the deceased as manifested by his acts, was not properly observed in the otherwise excellent To return to the evidence excluded by charge of the court below, which was as the court below, it is proper to notice the follows: distinction between threats and the gen"The defendant may also justify him-eral character of the deceased. By the self in the killing. by evidence showing Code threats are admissible as independ1st. That the deceased made an unlaw-ent evidence, without first having estabful and violent attack upon him. 2d. lished a predicate for their admission by That the attack was of such a nature as the proof of acts done at the time of killto have produced upon the mind of the ing, to which they gave additional force, It is further provided that in forming the jury the names of the persons summoned shall be called in the order they stand upon the list, and if present, shall be tried as to their qualification, and unless challenged shall be empanelled. Pos. Dig. Act 3004. subject to having their effect as evidence subsequently explained away by the court in the absence of evidence tending to prove such facts. In case of the proof of the general character of the deceased, there must be a predicate established by evidence already submitted, tending to prove some act done by the deceased at By this we understand that they are to the time of the killing which it would be challenged either for cause, or pegive aid and force to as heretofore ex-remptorily, severally as each one is deplained. And when admitted it would termined upon by the court to be a qualibe proper without improperly interfering fied juror, which is to be continued one with the peculiar province of the jury by one, until the jury is fully formed to for the court to explain the object of its the number of twelve. admission as auxiliary and explanatory of the act done to which it is pertinent, and not to be of itself independent evidence of defence. We know of no law or established practice under the law which sanctions the peremptory challenging of a juror by either party, when thus placed on the jury, whether it is full or not. The evidence in this case exhibited the acts of the deceased at the time of the There may be discretion in the court killing to constitute a predicate for the for excusing or standing aside a juror afadmission of the proof of the general ter he is selected, for some good cause character as a violent and dangerous man, and that he was in the habit of carrying weapons, and upon that ground it. should have been admitted. There is also a bill of exceptions in the record by the defendant as to the ruling of the court in the selection of the jury, which recites the facts as follows: After the State had severally passed upon Gray, Lindsey, and Davis, and before the jury had been fully made up, the court permitted the District Attorney to challenge each of the said jurors peremptorily, and had them to stand aside, to which the defendant excepts; to this exception the judge, in signing the bill of exceptions, annexed the following explanation, to wit: "The ruling of the court was that the State or defendant could challenge any juror, although accepted, when a new shown at the time why the juror cannot or ought not to serve on the jury. We do not think that the mode of selecting the jury adopted in this case is or was warranted by the law of this State. In the several errors that have been pointed out, and particularly for that of excluding the evidence offered to prove the general character of the deceased for violence, and that he was in the habit of carrying weapons, the judgment must be reversed and the cause remanded. Reversed and remanded. EJECTMENT. SUPREME COURT OF PENNSYLVANIA. juror was chosen, until their challenges Landlord and tenant. Judgment in prior respectively were exhausted." Upon a trial for a capital offence a special venire facias is issued for persons, suit. Error to Court of Common Pleas of Per Curiam. not less than thirty-six, nor more than Allegheny county. The landlord and tenant proceeding |