Prater v. State

BEAUCHAMP, Judge.

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 reported 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. Requested1 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.