Prater v. State
| Decision Date | 21 May 1941 |
| Docket Number | No. 21553.,21553. |
| Citation | 155 S.W.2d 934 |
| Parties | PRATER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Brown County; E. J. Miller, Judge.
Edgar Prater was convicted of murder, and he appeals.
Judgment reversed and cause remanded.
Callaway & Callaway, of Brownwood, for appellant.
Spurgeon E. Bell, State's Atty., of Austin, for the State.
The appeal is from a sentence of fifteen years for murder.
Briefly stated, the lengthy facts of this case show that the appellant owned a tract of land bordered on the north by land owned by Charley Moore, father of the deceased. The land sloped to the south and water from it drained onto Prater's land. The matter of drainage had been the subject of litigation between them in which Prater had lost, resulting in bad blood and repeated difficulties. This was the immediate cause of the tragedy.
While appellant was engaged in digging a ditch along the line contrary to the ideas of the Moores, the deceased approached and made an attack on appellant. Being larger and stronger, he soon got the better of the conflict and inflicted minor wounds on appellant, who had first retreated in an attempt to escape from Moore. The evidence is in conflict as to what took place at this time, but the result was that appellant had a pistol and turned and shot the deceased three times killing him instantly.
The record is before us without bills of exception, and the complaint alleged in appellant's brief is because of the failure of the court to give three requested charges. These charges are similar and will be treated together. Requested charge number one, omitting the formal part, reads as follows: "In connection with the charges on the law of self defense heretofore given you, and to be taken in connection with same, you are instructed that if you should believe and find from the evidence that the deceased, Cecil Moore, was making an unlawful and violent attack upon the defendant Edgar Prater at the time he was killed, and you should further believe from the evidence that such attack was not of such nature or of such gravity as to put the defendant in fear of death or serious bodily injury, still in that event, if you find the facts so to be, or if you have a reasonable doubt that such were the facts, you are instructed that the defendant would have the right to shoot and kill the deceased and if you find the facts so to be you will find the defendant not guilty and so say by your verdict."
Requested special charge number two is in different language, but practically to the same effect as number one.
Appellant relies on Article 1224 of the Penal Code, the pertinent part of which is as follows: "Homicide is justifiable also in the protection of the person or property against any other unlawful and violent attack besides those mentioned, and in such cases all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack * * *."
It will be noted that under the circumstances described in the article, the accused must resort to all other means for the prevention of the injury as a prerequisite to his right to kill his assailant. Special requested charges numbers one and two fail to so instruct the jury and were properly refused.
Special requested charge number three applies the law to the facts of the case on trial and instructs the jury to acquit appellant if they believe, or have a reasonable doubt, that such were the facts, and instructs them in the event they find that the killing took place under such circumstances as set out, the killing would not be unlawful and would be justified. We find that paragraph number six of the court's main charge covers the same thing in language quite as favorable to appellant as that requested, and certainly as much so as the law would direct. This charge was properly refused.
Finding no error in the record, the judgment of the trial court is affirmed.
On Motion for Rehearing.
In our original opinion we set out special charge No. 1 requested by appellant, and then said that special charge No. 2 while in different language was to the same practical effect as No. 1. In this we were in error. We here copy special charge No. 2, italicising the language which corrects the omission from No. 1, and which brings it within the purview of Art. 1224, P.C.
"In connection with the instructions heretofore given you, and as a part of the law in this case by which you are to be governed in rendering your verdict, you are further instructed, that even though you should believe and find from the evidence that the attack made upon the defendant Edgar Prater by the deceased Cecil Moore, if any you find was so made, was not of such character or with such weapons as to put the said Prater in fear of losing his life or suffering serious bodily injury by reason thereof; but you should believe and find that in truth and in fact the said deceased Cecil Moore, at the very time he was killed, was in the act of making an unlawful and violent attack upon the person of the said Edgar Prater, and that the said defendant had no other reasonable and practical means of preventing the said attack, then in that event, if you so find the facts to be, or if you have a reasonable doubt thereof, you are instructed that the defendant would have a right to shoot and kill the deceased, and if you find that the killing of the deceased Cecil Moore took place under the circumstances and conditions above stated, or if you have a reasonable doubt thereof, you will acquit the defendant, and say by your verdict `Not guilty.'"
We have again examined the evidence and without setting it out, express the opinion that appellant's testimony was such that if believed the jury might have reached a conclusion that the attack on appellant was unlawful and violent, but not of a nature to create in appellant's mind an apprehension of death or serious bodily injury. If such conclusion should have been reached by the jury they were without information as to the law under such a finding. See Taylor v. State, 122 Tex.Cr.R. 507, 56 S.W.2d 646, and cases there cited.
A further consideration of the case leads us to the conclusion that the trial court should have given special charge No. 2 or one of similar import.
Appellant's motion for rehearing is granted, the judgment of...
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