State v. Prater

• Decision Date: 14 January 1903
• Citation: 43 S.E. 230,52 W.Va. 132
• Parties: STATE v. PRATER.
• Court: West Virginia Supreme Court

43 S.E. 230

52 W.Va. 132

STATE v. PRATER.

Supreme Court of Appeals of West Virginia.

January 14, 1903

Submitted June 18, 1902.

Syllabus by the Court.

1. When, on the separate trial of one of three persons jointly indicted for murder, the evidence shows that the accused can be convicted only as principal in the second degree, and that at the time of the killing he did no act of violence, and, at the most, was present only for the purpose of aiding, if need be, and there is a conviction of voluntary manslaughter, the appellate court, in determining, on a writ of error, whether a new trial shall be allowed, will consider the evidence introduced, so far as is necessary in disposing of the assignments of error, although it tends to prove the crime of murder, as to which the verdict has wrought an acquittal.

2. In such case the prior acts, declarations, and threats of the accused, even though not a part of the res gestae, are admissible in evidence against him, when they legitimately tend to establish motive and intention to do the killing, and a common purpose and design on the part of himself and those jointly indicted with him to commit the act.

3. Proof of conspiracy or the existence of a common design on the part of two or more persons to commit a crime for which they are jointly indicted may be extracted from the circumstances connected with the transaction which forms the subject of the accusation; and, when they are such as fairly tend to prove such conspiracy or common design, they constitute a sufficient foundation for the admission of the acts and declarations of each of the parties as evidence against the others.

4. Although evidence of the acts and declarations of an alleged co-conspirator be admitted without a foundation therefor having been laid, the judgment will not be reversed for that reason if the evidence show that prima facie the fact of conspiracy has been established.

5. On a joint indictment of two or more persons, the state, with the permission of the court, may elect to try any or all of them separately.

6. It is error to permit it to be shown, in the course of a cross-examination as to the relation of a witness to the accused, in whose favor she testifies, that she is of illegitimate birth, but the error is not sufficient to reverse the judgment.

7. When an instruction given is incomplete, but states the law correctly as far as it goes, and the omitted part is supplied by other instructions given, such omission is not error.

8. The court is not bound to repeat its instructions, and it is not error to refuse to do so.

9. An error in an instruction favorable to the accused, and not such as might mislead the jury to his prejudice, affords him no ground of complaint against the verdict.

10. The principle of self-defense extends to the right of a person to defend a near relative when in immediate danger of death or great bodily harm, and will excuse homicide in such case when the killing is upon necessity or apparent necessity; and the designation of it as self-defense in instructions which clearly explain the applicability of it to the case on trial does not render the instruction improper.

11. The court, on the separate trial of J. P., having instructed the jury that they might find him guilty of murder of the first degree, murder of the second degree, voluntary manslaughter or involuntary manslaughter, or acquit him,--it appearing from the evidence that D. P. did the actual killing, and the evidence tending to prove that J. P. and L. P., jointly indicted with him, are principals in the second degree,--it was not reversible error to give the following instruction "The court instructs the jury that, under the indictment for the offense wherewith they stand charged, that if either J. P., L. P., or D. P. did murder C., the defendant J. P. being then and there present, lending his countenance to the commission of said offense, they must find him guilty as charged in the indictment."

12. It is not improper for the court to refuse to give to the jury, as an instruction, at the request of the accused, abstract propositions of law, quoted from a text-book, and not indicating to what class of evidence in the case it is applicable.

13. It is not reversible error to refuse to instruct the jury that they should consider certain facts established by the evidence, in arriving at their verdict.

14. To convict a person as a principal in the second degree, it is sufficient to find that he conspired with the slayer, or joined him in a common design, to kill the deceased; that the killing was done in pursuance of such conspiracy or design; and that the accused was present at the time of the killing for the purpose of aiding therein, if necessary to its accomplishment; and instructions calculated to impress upon the jury that they must find that he actually participated in the act of killing are improper, and may be refused.

15. It is not improper for the trial court, in overruling a motion to exclude certain evidence on the ground of inadmissibility, to remark, in the presence of the jury: "I don't think I ought to give my reasons for this decision. I don't want to give any intimation how I regard it. I simply say I overrule the motion to exclude the testimony."

16. Where the evidence tends to convict the accused as a principal in the second degree, the fact that he had a lawful purpose in going to the place of the killing at the time it occurred, while relevant and material and competent evidence in his favor, is not conclusive of his innocence, nor of the absence of comspiracy on his part.

Error to circuit court, Webster county; W.

G. Bennett, Judge.

Joseph Prater was convicted of voluntary manslaughter, and brings error. Affirmed.

Morton & Wysong and John D. Alderson, for plaintiff in error.

The Attorney General, for the State

POFFENBARGER J.

Joseph Prater, having been convicted in the circuit court of Webster county on the 13th day of November, 1901, of voluntary manslaughter, on an indictment for murder, complains of the verdict and judgment against him. The case is peculiar and difficult, involving some very nice questions of law. The state endeavored to convict the defendant of murder, upon the theory that there was a conspiracy to kill the deceased, Thomas Conley, and that the defendant was one of the conspirators, and that he, being present at the time of the killing, was a principal in the second degree. Conley was shot and killed by David Prater, a son of the defendant. The killing occurred in the woods where the deceased was cutting timber. Joe Prater and his son Lum Prater on the morning of the killing went together to the place at which Conley was working, each carrying a gun. Upon their arrival a quarrel took place between Joe Prater and Conley, in which Conley was the aggressor, cursing and abusing Prater, while the latter remonstrated with him and apparently endeavored to avoid trouble. During the progress of the quarrel a voice was heard from a place about 20 steps away in the brush, calling, "Are you ready to go?" or "Come on boys; let's go," or "Come on, pap; are you ready?" or "Are you ready, pap?" or "Pap, are you ready?" As to the exact words the witnesses differ. The defendant, Joe Prater, answered by calling out, "In a minute," or "Yes; in a minute." At or about that time the accused was seated on a log, and the deceased on the ground, at the root of a tree which he and another had commenced sawing down. At or near that time the deceased got up with an ax in his hand. But whether he had it in his hand at the time he was shot, or had stuck it in the tree, or had dropped it on the ground, there is controversy. Upon rising he said, "By God! I might as well die now as at any time," or "By God! if a man has got to die, he might as well die now as at any time. I am not afraid of you all, if you have got your guns,"--or something similar to that. Just what he said, and whether his words related to himself or the accused, are involved in contradiction and doubt. Immediately after he rose, Dave Prater, who had called to his father, shot Conley dead, firing three shots, one of which passed through the heart, another struck him in the mouth, and the third probably tore the clothing of the deceased across the abdomen, but did not break the skin. Some of the witnesses recognized Dave Prater before the shooting occurred. Whether the accused and the deceased did, is not known, but before the completion of the firing the defendant recognized his son, and called to him, saying: "Quit that, Dave. Look what you have done,"--or something similar. An expression, "Lord, have mercy! Look what you have done,"--was used either by the accused or by the deceased. As to which, there is conflict. Immediately after the killing, Joe Prater and his son Lum left the scene, going up the hill, some of the witnesses say, running, and others, walking very fast, taking their guns with them.

The evidence of conspiracy is substantially as follows: Letcher Young testified that on a Sunday night, about three weeks before the killing, he and his wife were at Joe Prater's house. After making some jocular remarks about fighting Young was called out on the porch by Dave Prater, and they were followed out by Amos Prater, another son of the accused. There Dave detailed to Young a quarrel which Lum Prater had had that day with Conley, and wanted to buy witness' revolver to defend Lum Prater. Witness also heard Joe Prater say Conley was a man they had no use for, and that they must get rid of him. On the following Tuesday, witness was again at Prater's house, and Joe Prater told him he had been at Tom Conley's the night before; said something about trading for the last gun Conley had, and also that...