Prater v. State
| Decision Date | 30 June 1915 |
| Docket Number | 692 |
| Parties | PRATER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from City Court of Gadsden; James A. Bilbro, Judge.
Son Prater was convicted of crime, and he appeals. Affirmed.
Culli & Martin, of Gadsden, for appellant.
W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.
The burden of proving that a homicide was committed in self-defense rests on the defendant, unless it can be deduced from the facts and circumstances which prove the killing. Hadley v. State 55 Ala. 31; De Arman v State, 71 Ala. 351, 360.
Charge 1 was properly refused to defendant, since it required the state to prove beyond a reasonable doubt that defendant "without excuse and unlawfully killed" the deceased, thereby misplacing the burden of proof as to self-defense.
If the facts were that deceased approached the place where defendant was at work and stated to parties there present, "There are three of you, G____ d____ him; why don't you beat hell out of him?" and defendant thereupon said to deceased, "You seem to be interested in it; you had better take it up;" and thereupon the encounter occurred--it was clearly a question for the jury whether defendant was or was not at fault in bringing on the difficulty. Charges 2 and 7 were properly refused for this reason.
Charge 3 was properly refused, because it assumes that deceased made use of "an epithet," which fact was in sharp dispute, and assumes, also, that defendant replied "in language of like character"--an assumption not supported by any of the testimony.
The indictment is, of course, not evidence in a criminal case and at defendant's request the jury were instructed:
"That the action of the grand jury in finding the indictment is not evidence of the guilt of the defendant, and should not be so considered by the jury in this case."
This substantially covered refused charge 4, and there was no prejudice to defendant in this regard.
There was no evidence tending to show that deceased attempted to drive defendant from his place of business; and, so far as defendant's duty to retreat is concerned, the trial judge repeatedly instructed the jury that defendant was under no duty to retreat as a matter of law. There was no error in the refusal of charge 6, that:
"Deceased did not have the right, under the law, to drive the defendant from his place of business."
Defendant testified as a witness for...
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Woodard v. State
...charge 23 was not error. True, it appears the trial court could have given it without his action being subject to criticism. Prater v. State, 193 Ala. 40, 69 So. 539. But this form of instruction has been condemned as being no more than an argument. Morris v. State, 146 Ala. 66, 41 So. 274;......
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Jackson v. State
...defendant is guilty of the charge.' Counsel rely particularly upon Salter v. State, 22 Ala.App. 86, 112 So. 538, also cite Prater v. State, 193 Ala. 40, 69 So. 539. We find nothing in the Prater case, supra, tending to support counsel's In the Salter case, supra [22 Ala.App. 86, 112 So. 539......
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Wilson v. State
... ... Irvin, 90 Ala. 275, 7 So. 841; ... Mitchell v. State, 94 Ala. 68, 73, 10 So. 518; ... Yarbrough v. State, 105 Ala. 43, 55, 16 So. 758; ... Byers v. State, 105 Ala. 31, 16 So. 716; Ross v ... State, 139 Ala. 144, 36 So. 718; Mitchell v ... State, 148 Ala. 618, 42 So. 1014; Prater v ... State, 193 Ala. 40, 69 So. 539; Brown v. Moon, ... 196 Ala. 391, 72 So. 29; Parker v. Newman, 200 Ala ... 103, 109, 75 So. 479; Johnson v. State, 203 Ala. 30, ... 81 So. 820; McGuire v. State, 2 Ala. App. 218, 57 ... So. 57; McGuire v. State, 3 Ala. App. 40, 58 So. 60; ... Roden v ... ...
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Stowes v. State, 5 Div. 146
...not be given which assumes a fact to be true which is in dispute); Rikard v. State, 209 Ala. 480, 96 So. 412 (1923); Prater v. State, 193 Ala. 40, 69 So. 539 (1915) (charge improper because it assumed a fact which "was in sharp dispute") Underwood v. State, 179 Ala. 9, 60 So. 842, 846 (1913......