author: HARPER, J. HARPER, J. DAVIDSON, J.

text:
    GHENT v. STATE.
    (No. 3516.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.
    On Motion for Rehearing, May 12, 1915. Dissenting Opinion May 24, 1915.)
    1. Criminal Law <§=>398 — Best Evidence— Acquittal of Crime — Failure to Indict.
    The record in the case is the best evidence of an acquittal; but, since there was no record where the grand jury failed to indict, oral testimony was admissible to prove that fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dee. Dig. <§=s 398.]
    2. Criminal Law <§=3695 — Trial—Objection to Evidence — Evidence Partly Admissible.
    An objection to evidence a part of which was admissible was properly overruled; since objection must be directed specifically to the inadmissible part in such case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. <§=> 695.]
    3. Homicide <§=>169 — Evidence — Materiality.
    In a prosecution for manslaughter, where defendant had been sent into a certain district in an attempt to stop the negro-terrorizing activities of “Whitecappers,” with whom the deceased was thought to be connected, and where a negro, a tenant of the defendant’s employer, received a notice warning him to leave such land, no proof being made by the defendant connecting the deceased with such notice, the notice itself was not admissible in evidence.
    [Ed. Note.' — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. <§=>169.]
    4. Homicide <§=>188 — Evidence—Character of Deceased.
    In. a prosecution for manslaughter, where the defendant attacked the character of deceased as a peaceable citizen by testifying that certain persons told him that deceased was as bad a man as there was in that neck of the woods and would need to be watched, evidence supporting the character of deceased was admissible on behalf of the state.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. <§=ol88.]
    5. Homicide <§=3300 — Self-Defense — Instruction.
    In a prosecution for manslaughter, the court charged that, if the jury believed from the evidence that, when the controversy arose between defendant and deceased, defendant was the aggressor and rode his horse at the deceased, then the law would not require the deceased to retreat, and, if deceased took hold of the reins of the horse t.o push him away, or made an assault on the defendant with his knife in order to repel the acts of defendant, then such acts on the part of deceased were not unlawful, provided he used no more force than necessary, but that, if the jury should find that deceased was the aggressor, threatened to kill the defendant, or cut his heart out, and made an attack on him with a knife, then the acts of the deceased were unlawful, and that, if there was a reasonable doubt on the point the jury should resolve it in favor of defendant. The evidence on the issue of self-defense was conflicting — that of bystanders being that tbe defendant was tbe aggressor; that of tbe defendant being that tbe deceased was the aggressor. Held, that the charge was proper as presenting the two theories of the case in a manner not to be misunderstood by the jury, although the court’s emphasis on the right of the deceased to act in self-defense in presenting the proposition reversed the normal way of stating the right, as depending on matters as they seemed from defendant’s point of view.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <§=»300.]
    Davidson, J., dissenting.
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    H. C. Ghent was convicted of manslaughter, and he appeals.
    Affirmed.
    Farrar & McRae, of Waxahachie, and Wynne & Wynne and S. J. Osborne, all of Kaufman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the state penitentiary.

The killing took place in Kaufman county, but the case was tried in Ellis county on a change of venue. The killing took place near what is known as Peele Town, in Kaufman county. W. T. and Jack Nash had owned a farm near this place. During the year 1912 the tenants on this farm received what is called “Whiteeap notices” and left. At the request of the Messrs. Nash the sheriff of the county went down to investigate the matter, and, getting information that led him to believe that a son of B. J. Jernigan (the deceased) was mixed up in the matter, he called to see Mr. Jernigan, and says;

“I went down there to investigate, and I found out to my satisfaction that it was some of the boys there in the neighborhood that had done this; yet I was not in a position to prove it in court. I went into the field to where Mr. Jerni-gan was at work and talked to him about it. I told him that he had property there, and that the interest of the community was his interest, and he should help me eliminate that situation there, and his boys, if they got tangled up in the meshes of the law, it would be hard for them to get out. He asked me who it was, and I told him I did not care to tell him, that I was not in a position to put anybody in court about it, and I told him I just wanted that situation eliminated. He asked me whether his boy had anything to do with it, and I told him that I could not answer his question whether his boy had anything to do with it; that if I began to answer his questions he would finally ask me one that I could not answer; and he talked somewhat irritated because I would not answer his question. He did not seem to be in a very good humor when I left him.”

Later W. T. and Jack Nash sold the laud to some parties in Ellis county, and they placed E. K. Atwood (one of the owners) in charge thereof, and he had charge during the year 1913, and at the time the killing took place in January, 1914. Mr. Atwood testified that in December, 1913, he had some negro tenants on the place, and they were being molested and were being threatened, receiving Whiteeap notices to leave the farm, and some did leave. He (Atwood) applied to W. T. and Jack Nash to aid him in getting a man to go to the farm and look after the matter. They recommended appellant, and he was employed. W. T. Nash testifies in regard to the matter as follows:

“I know tbe defendant, H. 0. Ghent; have known him 15 years — 10 or 15. I remember the circumstances of a report of Whitecapping and' trouble down on the Atwood farm. I had owned that farm previous to that time, me and my family, and had sold it to Mr. Atwood and these other gentlemen. I had a conversation with Mr. Atwood in regard to employing some one to go down there on tbe part of Mr. Atwood and protect the negroes and look after the White-capping. The first conversation we had was with my brother, Jack Nash. My brother and me had a conversation with Mr. Ghent in regard to the matter. He asked him first if he would go, and he said he did not know, and he wanted to know what it would pay him. We told him it would pay him something more than he was getting. He said he was getting, I believe, $40 a month. We told him we thought these people would be willing to pay him possibly $75 a month, and we discussed whether he would go or not. He said if he could agree with them satisfactorily and pleasantly he would go. We told him, of course, that it was a pretty bad thing, that the year before that they had posted some notices on one of the cabins, and that I had to go down there and take the sheriff with me, and the sheriff went around in the community and talked to different people, and I said to some of the people at the store down there in a little crowd that had accumulated that I was running that place, had always run it, and treated them right, and anything I had they could get, and that I wanted to be neighborly, that I paid the big end of the taxes for that school; in fact, mentioned, ‘You have the best country school in the county; this place largely supports it, and X want to get along with you people.’ I told him they had posted these notices the year before, and I told him that I was going to protect the place if I had to go down there and sleep and stay there all the time; that it was a pretty bad community, and there were some bad men down there, and that it was a pretty hard job; that the year before I had taken the sheriff down there. In the conversation I mentioned the fact about going to see Mr. Jernigan. After my brother, Mr. Ghent, and I talked that night Mr. Atwood came to Kaufman, and we had Mr. Ghent in the barn, and I went and got Mr. Grane and brought him down there. Mr. Grane was at that time sheriff of Kaufman county; he had been sheriff for eight or ten years. My brother, Mr. Atwood, Mr. Ghent, Mr. Grane, and myself were all present at the conversation in the barn. We got Mr. Crane for the purpose of advising with Mr. Ghent. We told him that, as sheriff of the county, we wanted to consult with him in connection with employing Mr. Ghent to go down there and protect this property, and mentioned, of course, that he knew about this Whitecapping, and Mr. Crane said, ‘Yes; I haven’t been able to get anybody to handle the situation down there,’ and we asked him what he thought about getting Ghent to go down there, and he said.be thought he was the very man to handle it. He asked Mr. Ghent did he have a gun, and he said he wished he had a saddle gun for him— said, ‘I wish X had my saddle gun to let you have;’ and Ghent said that he had a gun; and we asked Mr. Grane to deputize him, and Mr. Crane said that he could not do that, that he had all of the deputies that the law allowed him, but for him to go ahead and go armed; and he said that a man that would post Whitecap notices and explode dynamite would shoot you in the hack; and he said, ‘Xou watch him now;’ and he.said, ‘There are some bad ones down there;’ and we said, ‘Can’t you give him some authority;’ and he said, ‘Well, now, of course, I cannot deputize him, but I will take care of him about the guns;’ and with that understanding he went down there and accepted this employment, and once or twice during that time while he was employed he came back and consulted Mr. Crane and consulted with us. I don’t remember whether it was in that conversation or the other one we discussed with Mr. Ghent that we had gone down there and talked to Mr. Jernigan. Just before this employment of Mr. Ghent there had been a report to us about the Whitecapping and dynamiting of the place; Mr. Atwood called us up, and then we heard it too. I do not think Mr. Crane went into details about the conversation he had with Jernigan at the time Mr. Crane and me went down to see Jernigan; he just mentioned to Mr. Ghent that he had some trouble there the year before; that he went in the field and talked to Mr. Jernigan, and he became very enraged; he told him that he was sheriff of the county and expected to enforce the law, and that he was down there with Mr. Nash— that is the conversation that he related — that Mr. Nash wanted to be neighborly and get along with those people without any trouble, that he didn’t want any trouble, and that if it was not cut out, if it happened again, he would have to arrest his boy. My recollection is that in that conversation Mr. Crane just said, ‘And he is a bad one’ — used an expression of that kind, ‘He is a had one;’ I think Mr. Crane used that expression.”

Jack Nash, and E. K. Atwood testify, in substance, the same thing. The sheriff denies telling appellant that B. J. Jernigan was a had man, but says he told him only of the conversation he had with Jernigan hereinbefore recited, and denies he agreed “to take care of appellant if he carried a pistol off the premises of Atwood.” After this appellant went to the Atwood farm, and he contends he caused the arrest of some eight or ten men, charging them with the Whitecap-ping. It was shown that when the grand jury investigated the matter only one of the men arrested was indicted; the others being discharged. It was further shown that the man indicted by the grand jury was acquitted. This fact was shown by oral testimony. Appellant objected to it thus being shown, claiming that the record was the best evidence of such fact. In approving the bill the court says that, when the testimony of County Attorney Terry was objected to on this ground, “proof had been made before the witness John Terry was placed on the stand that the Whitecapping cases had been dismissed, all except one, and that case had been tried, and the defendant acquitted, without objection being made thereto.” It is a correct proposition of law that, in so far as the acquittal of one was concerned, the record would have been the best evidence. But, where the grand jury fails and refuses to indict, there is no record made in the minutes of the court of such fact; so that the grand jury had failed and refused to indict could be proven by oral testimony alone. It is a rule of law well recognized that, where objection is made to testimony, a part of which is admissible and a part not, the objection is not good, but the -objection must be directed specifically to that part which is inadmissible. The bill is as follows:

“After the said witness had testified that he was county attorney of Kaufman county, Tex., and that he had charge of the case against the Whitecappers in Kaufman county, Tex., he was asked: ‘Q. What became of the Whitecapping cases?’ To the question the defendant objected, and to the answer sought to be elicited from the said witness the defendant objected, because the testimony was irrelevant and immaterial, and the record of the cases from Kaufman county, Tex., would be the best evidence of what became of the cases. The said objections of the defendant, H. G. Ghent, were by the court overruled, and the witness permitted to state, and he did state, in the presence of the jury: ‘A. Only one bill was returned out of the ten. The grand jury indicted one of them, and failed to return a bill against the other nine, and they were discharged on the failure of the grand jury to indict, and the one was tried and acquitted.’ To which action of the court in permitting this evidence to go to the jury, over the objection of the defendant, the defendant excepted and objected, and he here and now objects and excepts, and tenders this, his bill of exception to said action, and asks that the same be approved as a part of the record in this cause.”

It is thus seen the objection was urged, to all the testimony, and, a portion of it being admissible, the court did not err in overruling the objection. In the case of Ortiz v. State, 151 S. W. 1056, Judge Davidson aptly states the rule:

“Where evidence is introduced over objection, some of which is admissible and some of which is on doubtful grounds, or which might be objectionable, it is the duty of the objector to specify in the bill the particular portion to which objection is urged” — citing Branch’s Crim. Law. § 47; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872.

It appears that after Mr. Ghent went to the Atwood farm some unknown parties-visited the Atwood farm dressed in sheets, called Nick Edwards to the door, and handed him the following notice:

“Read and Go.
“Say, negroes, you had better move in the-next three days We have give you all fair warning. We don’t expect a negro to live on the Nash [Atwood] farm at all. We don’t want to hurt you all, but you had damn sure better get off of that farm and stay off. Now, we don’t, want to have to tell you any more to move. This is our last warning.”

Appellant offered this notice in evidence,, and reserved a bill of exception to its exclusion. The court, in approving the bill,, says he excluded the notice because deceased was not connected with it, and refers us to-the statement of facts. The statement of facts shows that appellant was told by the-sheriff that the year before he had reason to-suspect deceased’s son was connected with, the Whitecapping in that community. It further shows that appellant had seen the notice, and that Mr. Atwood told him:

“There was a man by the name of Jernigan, who had made some talk about this negro Nick Edwards, and told him he would give him $50 to stay there, and he bet him $50 more that he did not stay there; that if he went to sleep on that farm he would wake up in hell.”

Appellant says Nick Edwards also told him about the matter, and he went to see Mr. Jernigan, and asked him if he had had that talk with this negro, and he said, “Tes; X had that talk with him,” and deceased said, “God damn him, X am going to kill him for telling yon.” Appellant then recites what occurred, saying he said:

“ ‘No, Mr. Jernigan; there is no use in killing the negro for telling me, because he did not voluntarily tell me, because I went to him and asked him if he had had such a talk with him’— if Mr. Jernigan had had such a talk — and he told me that he had. Nick told me that he had; and I says, ‘Mi-. Jernigan, the negro is not to blame at all, because he would not have told me if I had not asked him the question,’ and he said Edwards had told him, and says, ‘Well, I won’t bother them any more.’ I said, ‘All right, then Mr. Jernigan,’ and I stayed there a few minutes, and he called a couple of negro boys that they had in the field there and asked them if he did not joke them sometimes, and he told these two negro boys what I was up there for, and said to them, T joke the boys a right smart,’ and both of the boys said, ‘Yes,’ and I told Mr. Jer-nigan that I had to go back home, and he went around with me and asked me to go down to dinner with him. I went on back home, and I did not take dinner with him. We were friendly so far as I know.”

This is as near as the record comes to connecting deceased with the delivery of the notice to Nick Edwards, and, as the court permitted Nick Edwards to testify fully in regard to the matter, we do not think he committed error in excluding the contents of the notice. The fact that Nick Edwards received a notice was permitted to be shown, and Nick was permitted to testify:

“I went to Mr. Atwood’s place, in Kaufman county, from Ellis county. I moved from Ellis county to that place to be one of his tenants. I moved over there in October, about the latter part. I lived there during November, December, and January. I knew Mr. Ghent and Mr. Jer-nigan, the man that got killed. Before this killing I was living on the place keeping the house. Pi’ior to this killing I received notices— Whitecap notices; it was at night when I received them. It was Saturday night before Christmas Eve. X had gone up there to a little town by the name of Peele Station to a little store to get me a little stuff, and I came on back home, and was sitting there by the fire between 10 and 11 o’clock, as near as I can remember— I do not know exactly; I did not have any time. A good many of us was sitting around the fire, and somebody walked up and holloaed, ‘Hello!’ and I had my baby in my lap, and I answered, and he says to me — says, ‘Come out here.’ I says, ‘AYhat do you want?’ He says, ‘It don’t matter a damn what I want;’ and I says, ‘Come here,’ when he spoke that way. Of course, I kind of commenced to feel dubious, and I says, T ain’t going nowhere.’ He says, ‘If you don’t come out here I will blow you up, God damn you;’ and I says, ‘Go blow me up, for I ain’t coming.’ At that time some of the boys— It was a dark ball, and he throwed it up against the wall, and it exploded, and he says, ‘If you don’t come we will blow you up.’ One of the boys walked out on the front porch. On Sunday morning I comes to Ennis and goes to Mr. Atwood. I copied from that notice as near as I could, and when I went to Ennis I gave it to Mr. Atwood, and he read it, and asked me if I had an idea who wrote it, or who it was, and I told him that I thought I did. He asked me who, and I gave him the name of the parties I thought it was. He says, ‘Well, you go ahead on up to my house and stay there with son, a colored boy, until after dinner, and I will see about this, and see about maybe.’ That is the words he spoke to me. Previous to this time there was not any houses blowed up, but they set a charge or two close to my house, I suppose. The first two that they put out there there was not any sound; I could hear them. The last two that they put there about 100 yards from .the house in the root of a red oak tree, and put two charges in the same hole, and I was standing on the porch when they went off. The first one that went off I was in the house, and walked out on the porch and seen the last one that went off. At the time I went down and reported this to Mr. Atwood there were some people from Ellis county, from where I was, tenants on the Atwood far-m — Mrs. Dickson and her family. Some of the tenants had gone away at the time they began to blast. There was about two families moved out when they began to dynamiting the place. I went to Ennis and told Mr. Atwood about this after I got the notice, and I then went back to the farm. After that I saw Mr. Jernigan, the man that was killed, and had a conversation with him in reference to dynamiting. He asked me after the people had gone, he asked me — he says, ‘Nick, the rest of the negroes have left out down there,’ and I told him, ‘Yes,’ and he says, ‘Why don’t you leave?’ and I told him I owed Mr. Edwards some,’ and he said he was going to have colored down there, and I thought if he was going to put colored down there I thought I would stay and pay him, and he says to me, ‘It seems to me like that you put yourself up as a target trying to play bully,’ and he says, ‘We don’t allow any bullies down here,’ and he said, ‘If any of the boys say anything to me, you treat them nice and go ahead and not try to play bully,’ and walked on off. He told me in that same conversation he would bet me $50 I would not stay, and would give me $50 if I would stay. He said if I would stay down there that night onte of these mornings I would wake up in hell; that is the way he spoke it. He was in earnest when he was talking then.”

It was thus seen that every circumstance connected with the affair was admitted in evidence, except the contents of the notice, and Nick Edwards testified that:

“He told Mr. Atwood that he thought he knew who wrote the notice; that he told Mr. Atwood the name of the parties connected with the affair.”

If deceased was one of the parties, or Nick Edwards thought he was, it could easily have been proven by him, for he says he told Mr. Atwood who they were, and, if it had been shown that deceased was one of them, then the contents of the notice would have been admissible.

In a number of bills it is shown that R. E. Conner, S. K. Palmer, Lawrence Gillespie, Ed Moore, R. W. Pryor, John Brewer, Ed Martin, Bill Middleton, W. R. Crane, E. W. Henderson, J. S. Terry, Ed Hutcheson, and perhaps others were permitted to testify that they knew deceased, and knew his general reputation as a peaceable and law-abiding citizen, and that such reputation was good. Appellant objected to this testimony, claiming that he had not attacked the reputation of deceased. If he had not, his contention would be correct that such testimony would be inadmissible. However, we are of the opinion that appellant had attacked the reputation of deceased in this respect. Pie himself testified that:

When he was talking with Atwood, Jack Nash, W. T. Nash, and Sheriff Crane, “Mr. Crane told me that it was a rough country in that neck of the woods, something about the words he used, ‘in that neck of the woods,’ and they told me about a fellow by the name of Jer-nigan that lived down there in that country, that the year before that there was some White-capping going on down there, and .that his boy was implicated in the Whitecapping before, and him and Bud Nash went to see Jernigan to talk to him about the boy, and went out in the field where Jernigan was, and Jernigan got pretty raw, something about the words he used, pretty ‘rough,’ and he says, ‘He is a bad man.’ Pie says, T think he is,’ and he says, ‘You will have to watch him.’ In that conversation Mr. Jack Nash told me that if I went down there that I would have to be awful careful; that they were liable to come on to me at any time, and if they did that they would hurt me; that this man Jernigan was one among as bad men as there were in that neck of the woods.”

W. T. Nash testified as hereinbefore stated. Jack Nash testified he told appellant Jernigan, deceased, was a bad man, and that Jernigan was threatening the negroes, and other like statements. The evidence offered in behalf of defendant is replete with testimony that Jernigan was a bad and dangerous man, and the witnesses say they had so told the defendant. In addition to this defendant tried by circumstantial testimony to connect deceased with the Whitecapping that had been going on in that neighborhood. Under such circumstances we think it was permissible for the state, in rebuttal, to show that deceased was not a bad or dangerous man, was not the character of man who would engage in Whitecapping' escapades, but, on the other hand, was a peaceable, law-abiding citizen. Appellant had raised the issue as to the character of deceased, and the state could meet and rebut it. In the case of Berry v. State, 163 S. W. 965, we had this question before us, and we there held:

“Of course, if appellant had not * * * directly nor indirectly attacked the reputation of deceased, it would not have been proper for the state to introduce such evidence. But when the defendant had raised that issue by the evidence adduced by him, * * * under all of our decisions, it was permissible for the state to introduce evidence to meet the proof of defendant, and show, if it could, that deceased was not a violent * * * and dangerous man, but * * * a peaceable, law-abiding citizen.”

This disposes of all the bills of exception in the record, with the exception of the bill relating to the charge of the court. As appellant was found guilty of manslaughter, it is unnecessary to discuss those portions of the exception relating to charge on murder, and the exception to the charge on manslaughter is general in its terms, and without merit. Hendricks v. State, 154 S. W. 1005.

On the issue of self-defense the court charged the jury:

“Upon the law of self-defense you are instructed that, when a person is unlawfully attacked by another, and there is created in the mind of the person so attacked a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person in resorting- to any means at his command to prevent his assailant from taking his life or from inflicting upon him any serious bodily injury, and it is not necessary that there should be actual danger, as a person has the right to defend his life or person from apparent danger as fully and to the same extent as hé would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him, viewed from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
“If you believe from the evidence that B. J. Jernigan at the time of the homicide made an unlawful attack upon the defendant with a knife, and that from bis acts, or from his acts coupled with his words, it reasonably appeared to defendant, as viewed from his standpoint, that he was in danger of losing his life or suffering serious bodily injury at the hands of deceased, and that defendant shot and killed the deceased under such reasonable apprehension or fear of death or serious bodily injury, if any such apprehension he had, then you will find the defendant not guilty.
“In connection with the charge on self-defense you are instructed that, if you believe from the evidence that B. J. Jernigan was armed with a knife and had made an unlawful attack with, it upon the defendant in such manner as was reasonably calculated to produce death or serious bodily injury, then the law presumes, and you will presume, that Jernigan intended to kill or seriously injure the defendant.
“You are further instructed that, if you believe from the evidence beyond a reasonable doubt that at the time the controversy arose between Jernigan and defendant, at the time of the homicide, that the defendant was the aggressor and rode his horse at or towards the said B. J. Jernigan, then the law would not require the said B. J. Jernigan to retreat; and, if you further believe from the evidence beyond a reasonable doubt that he took hold of the reins or bits of the horse to push him away from him (Jernigan), or that he made an assault on said defendant with his knife in order to repel the acts, if any, of said defendant, then you are instructed that such act or acts on the part of said Jernigan would not be unlawful, provided he used no more force than was necessary. On the other hand, you are instructed that, if you find from the evidence that said Jernigan was the aggressor, that is, if he threatened to kill the said defendant, or to cut his heart out, and made an attack upon him with a knife, then you are instructed that the acts of the said B. J. Jernigan would be unlawful; and, if you have a reasonable doubt upon this issue, it would be your duty to resolve it in favor of the defendant.”

The latter paragraph of this charge is attacked in several particulars. In the first place it is contended that it impairs appellant’s right of self-defense; does not charge the law of the case; abridges his right to defend his person; has no basis in the testimony; and charges from the standpoint of the dead man, and gives to the jury the dead man’s right of self-defense, etc. If there is error in this paragraph, it may be said it is sufficiently complained of. This makes it necessary to state the facts at the time of the killing. There were hut four eyewitnesses, W. B. Miehaelson, J. D. Warren, Dock Jernigan, and appellant. Miehaelson testified:

That Jernigan was inside of his field, and witness was talking to him, when appellant rode up; that both he and deceased spoke to appellant, and he replied; that Jernigan then said: “ ‘Ghent, you have been rounding- me up to Ed Hutch,’ and he says, T want to round you up.’ Ghent turned with his horse’s head towards the fence and says, ‘What is it?’ He stopped when Jernigan spoke like he did; he was going west towards Red Bank. That was not the road that leads directly to Peele Bake, his ranch. Ghent turned with his horse’s head towards the fence, when he stopped and says, ‘What is it?’ He says, ‘You have been threatening to lock me up to Ed Hutch;’ and Ghent says, ‘God damn you, if you don’t keep your mouth shut I will lock you up.’ Jernigan says, ‘You cannot lock me up;’ and he says, ‘If you will get down I will give you a good whipping.’ Ghent says, ‘I cover the ground I stand on.’ They were cursing and abusing each other. I could not go over all the details. Jernigan says, T understand you have been in the penitentiary.’ He says, T would like to know what you went to the penitentiary for;’ and Mr. Ghent then made a razee at the fence to run through it or jump over it — I could not say which — but he made a razee at the fence. He was on his horse, and when he did that he was up against the wire, and Jernigan caught the horse right by the bits, up close to the mouth. I do not know whether he aimed to keep the horse back outside of the fence or what he did it for; I do not know anything about that; but Mr. Ghent-ran his hand to his pistol, and Jernigan turned the horse loose, and was stepping back when Mr. Ghent shot him; he stepped back, my recollection is, three steps, when Mr. Ghent shot him.”

J. D. Warren testifies, in substance, to the same state of facts-, as does also the deceased’s son, Dock Jernigan. The witnesses for the state say that deceased had a pocketknife in his hand whittling when appellant rode up; that he at no time attempted to use it.

Appellant testified in his own behalf, and said:

“When I rode up there Mr. Jernigan was over in the — he was in the middle of the road, or something near that. I was going very slow, and the words came from him, and I turned around. He was on the inside of the fence, and he says, ‘You jacked me up the other day;’ and he says, ‘Now, I am going to jack you up.’ He says, T want to tell you something right now; there is no God damned ex-convict can do anything with me;’ and when he said that he was right next to the fence, and he caught my horse by the bridle reins and says, ‘God damn you, I am going to cut your heart out,’ and he commenced cutting at me with a knife, and the mare commenced jumping, and in the struggle I was scared and went for my gun— the mare jumping, when I jerked my gun out and shot, and when I shot the mare wheeled around, and the last I seen of Mr. Jernigan as the mare wheeled around he was going’ backwards — stepping backwards. I shot Jernigan because I was scared; I was afraid that they were fixing to mob me; I thought they had a bunch up there to kill me, because I knew that I was in a bad country, and I did not know whether I had any friends in that part of the country or not, and they had told me that he was a bad man. At the time I shot him he was cutting at me with a knife. I shot him to defend myself.”

It is thus seen there is a direct conflict between appellant’s testimony and that of three other eyewitnesses. He admits Jernigan was inside of the field, but says he advanced to the fence, caught his horse by the bridle, and commenced to cut at him, saying, “God damn you, I am going to cut your heart out.” The state’s case is that, when deceased remarked, “I would like to know what you went to the penitentiary for,” appellant made an attempt as if to have his horse jump the fence, when deceased caught the horse by the bridle. Appellant then pulled his gun and shot deceased as he backed off. The court in the paragraph complained of merely presents the two theories of the ease; that is, if appellant advanced on deceased, when he made the remark quoted, and Jernigan acts were done in defending against such an attack by1 appellant, then appellant could not claim to have acted in self-defense. The court puts it in different language, but that is the plain meaning of the words used, and could be understood in no other way by the jury. It is true Jernigan was not on trial, and the question of whether or not he acted in self-defense is not an issue in the case; the issue being whether or not appellant acted in self-defense, or whether he first attacked deceased, and then deceased caught the bridle of the horse and cut at appellant, if he did do so. If appellant made the attack first, the acts of Jernigan, if he did those things, would not justify appellant in slaying the deceased. And, while that paragraph of the charge is inaptly worded, yet the court gives the converse of the proposition, and we do not think it could or was misunderstood by the jury. It would have been better to have used language instructing the jury that, if he committed the first overt act with the intention of bringing on the difficulty, he could not claim to have acted in self-defense, and then the converse of that proposition. However, this, in effect, is what the charge as given, when read with the whole charge on self-defense, does do, and is a direct application of the law to the two theories as presented by the testimony. As before stated, while probably inaptly worded, under the evidence adduced, it presents the issues in a way that the jury would clearly understand what was meant by the language used, and the criticisms of the charge present no error for which the case should be reversed.

The judgment is affirmed.

DAVIDSON, J. I cannot concur.

Ón Motion for Rehearing.

HARPER, J.

Appellant has filed a motion for rehearing in which he earnestly insists that we erred in holding that 'proof of the general reputation of deceased was admissible, contending that he had made no attack on deceased in that respect. If not, of course, it would be error to admit evidence as to tide general reputation of deceased. But is be correct in saying be made no attack on deceased as a peaceable, law-abiding ciitzen? If appellant was making no attack on tbe reputation of tbe deceased as a peaceable, law-abiding man, wby does be testify that Sheriff Crane told bim that “Jernigan [deceased] was a bad man, and you will bave to watcb bim”; that Jack Nash told bim “that this man Jernigan was one among as bad men as there was in that' neck of tbe woods” ; that when tbe sheriff bad gone to see Jerni-gan tbe year before that Jernigan had got raw; and that if be (appellant) went down there be would have to watcb Jernigan? Wby does be introduce testimony of what be says Jernigan, deceased, said when be talked to bim about what it was claimed Jernigan bad said to tbe negro Nick Edwards, and Jernigan saying that be was going to kill Nick for telling bim (appellant)? Wby cLoes be introduce Nick Edwards to prove that jer-nigan bad said to bim, “Nick, we don’t allow any bullies down here; it seems to me that you put yourself up as a target trying to play bully,” and that be (Jernigan) would bet bim $50 be would not stay on tbe farm, and would give bim $50 if be did stay; that if he (Nick) did stay be would wake up in bell one of these mornings? Wby did appellant introduce E. K. Atwood, W. T. Nash, and Jack Nash all as witnesses to prove that they bad told bim (appellant) that Jernigan was a dangerous and violent man, and bave Mr. Jack Nash testify “that it was a dangerous country, a bad country, and that any man who would paste Wbitecap notices and dynamite a man’s property would shoot bim in tbe back; that Sheriff Crane bad said it was a hard country and a dangerous class of men who did these things, and bad told appellant that Jernigan was a bad man”? Wby bend all bis energies on tbis trial to prove, circumstantially at least, that Jernigan was connected with tbe Wbitecappers, if be was not attacking the character of Jernigan as a peaceable, law-abiding man? The record is replete with evidence of tbe character above stated, and it could not be and was not introduced for any purpose other than to cause tbe jury to think that Jernigan was a dangerous and violent man, and a violator of tbe law. If not, sucb evidence bad no place in tbis record; for it was in no way connected with tbe circumstances of tbe killing other than to show the character of man appellant was dealing with at the time be shot bim. To say that tbe appellant could make tbis character of attack on deceased’s reputation, and tbe state could not meet it with legitimate evidence, is, to our mind, but to state an absurdity. Jernigan’s mouth was closed by death, and to permit these men to testify that be was a dangerous man, a bad man, a violent man, and bis neighbors, men who bad known bim for years, would not be permitted to testify as to tbe general character be had established in their midst, would not be just to tbe dead man. His life was as dear to bim as is tbe liberty of appellant to bim. Courts are organized and conducted that the truth may be known; the witnesses are introduced, and then tbe jury can determine whether or not'those who said deceased was a bad man, a dangerous man, and a violent man, or those who said bis general reputation was that of a peaceable, law-abiding citizen, are entitled to most credit. Appellant says tbis is tearing down tbe bulwarks of tbe law. But we hardly think so. Tbis question was discussed in tbe case of I-Iysaw v. State, 155 S. W. 942, and it was beld:

“We think that, where the appellant puts the reputation of the deceased in issue on this subject by evidence either of his general reputation to that effect, or by specific acts showing it, then it would be proper for the state to rebut this by showing that his reputation * * * was not as attempted to be shown by such evidence, but his character was that of a peaceable, quiet, and law-abiding man.”

In Bullock v. State, 165 S. W. 200, this court said:

“Certainly, when an appellant is permitted to so attack a deceased, the state should then be permitted, if it could, to introduce proof to rebut such evidence. * * *. The state * * * unquestionably has the right to meet this proof by showing that the general reputation or character of a deceased was that of a quiet, peaceable, and law-abiding man, and not the reverse, as attempted to be shown by an appellant.”

Tbis question is also discussed in Johnson v. State, 167 S. W. 733, and Darnell v. State, 58 Tex. Cr. R. 594, and in botb cases sucb testimony is beld to be admissible, when tbe appellant injects into tbe case tbe issue of tbe character of deceased. This is not only the rule in tbis court, but sucb has been beld to be tbe rule in civil cases by our Supreme Court in Tex. & Pac. Ry. v. Raney, 86 Tex. 363, 25 S. W. 11, and our Courts of Civil Appeals in Texas Cent. Ry. Co. v. Weideman, 62 S. W. 810. And not only is it tbe rule in tbis state in botb civil and criminal courts, but it is the rule generally adhered to, as evidenced by tbe opinions in tbe following cases: Lewis v. State, 35 Ala. 380; People v. Ah Fat, 48 Cal. 61; Central Ry. Co. v. Dodd, 83 Ga. 507, 10 S. E. 206; Clackner v. State, 33 Ind. 412; State v. Fruge, 44 La. Ann. 165, 10 So. 621; Vernon v. Tucker, 30 Md. 456; Russell v. Coffin, 8 Pick. (Mass.) 143; People v. Hulse, 3 Hill (N. Y.) 309; State v. Roe, 12 Vt. 93; George v. Pilcher, 28 Grat. (Va.) 299, 26 Am. Rep. 350. When tbe appellant first offered evidence that deceased was a bad man and a violent man, then the state could meet that evidence by testimony tending to show that be was not a bad man and a dangerous man, but a peaceable, law-abiding citizen.

Tbe only other question raised in appellant’s motion for rehearing is that tbe court erred in bis charge in presenting tbe law of self-defense. Tbis was thoroughly discussed in tbe original opinion, and we do not deem it necessary to do so again, as our opinion on that question is not changed. The court aptly presented both the theory of the defendant and the state, and told the jury the defendant should be given the benefit of a reasonable doubt on this issue.

The motion for rehearing is overruled.

DAVIDSON, J.

(dissenting). It occurs to me this case ought not to have been affirmed, hut reversed. As I see this record and understand it, the Whiteeap notice, eontained'in a hill of exceptions and discussed in Judge HARPER’S original opinion, should have been admitted in evidence. Appellant was hired to go to the Nash or Atwood farm and take charge of it on account of the Whitecapping that was being done and threatened to be done to and with the tenants on that property. Appellant hesitated about going, and, among other things, the deceased was discussed, and appellant was informed that the deceased was a had man, and he would have to watch him. Nick Edwards, a negro tenant on the farm, had been served with a Whiteeap notice that he must move. The notice is set out in Judge HARPER’S opinion, and I do not care to repeat it. It shows on its face that Nick Edwards was required to leave, and leave promptly; otherwise there would be serious trouble in the very near future for him. This was communicated to appellant. The deceased, Jernigan, had had a talk with Edwards about moving, in which he informed Edwards, in substance, that he must get away, and challenged him to stay on the place, on pain of trouble. All this it seems was communicated to appellant. Some conversation came up between appellant and deceased about what appellant had said to some one else prior to the morning the parties met. Deceased mentioned something about this matter, and this brought up the trouble which ended in the killing. Deceased said that appellant had said things about him to a third party, and now deceased purposed to have something to say to appellant.

The facts are controverted as to who may have been in the wrong in the inception of the difficulty, hut the issue of self-defense was in the case. The character of the deceased was sought to be made an issue in the case. The state introduced quite a lot of testimony showing he was a man of good reputation. Objection was urged to this on the ground appellant had not placed his reputation in evidence. Be that as it may, this Whitecapping notice was introducible for more reasons than one. The fact that White-capping was going on there was the reason why appellant was employed to be there. The deceased, Jernigan, was connected with this Whitecapping notice sufficiently to make it a part of the case, and it should have been introduced in evidence. It was also intro-ducible for another reason. The reputation or standing and character of deceased got into the case. If he was connected — and the evidence. indicates that he was — with the Whitecapping business, and especially the posting of this Whiteeap notice, it would seriously impair, or tend to do so, his standing as a law-abiding citizen. It could not be well contended that a man who posted notices of that sort and threatened to kill his fellowman, who was trying to support his family as a laboring tenant, if he did not move-from the farm, was a man of inoffensive disposition and a good' man. It would indicate-a disposition on the part of those who posted that notice of lawlessness and an utter disregard of the rights of his fellowman, and showed a heart fatally bent on mischief and-regardless of social duty. It was therefore-admissible: First, because it was a part of the case; it was at the bottom really of the-trouble between the parties, deceased and defendant, and deceased was sufficiently connected with it to show that he had a hand in it either in the actual posting or as privy and accomplice to it. If he had been upon trial for posting that notice, with the evidence in this record against him, I do not believe this court would have reversed the judgment on the facts had he been convicted. It was also admissible as bearing upon his reputation and standing, as the whole matter grew out of this Whitecapping business. I do not care-to follow this question further.

The court charged the jury:

“That, if you believe from the evidence beyond a reasonable doubt that at the time the controversy, arose between Jernigan and defendant at the time of the homicide that the defendant was the aggressor and rode his horse at or towards the said B. J. Jernigan, then the law would not require the said B. J. Jernigan to retreat; and, if you further believe from the evidence beyond a reasonable doubt that he took hold of the reins or bits of the horse to push him away from him (Jernigan), or that he made an assault on said defendant with his knife in order to repel the acts, if any. of said defendant, then you are instr-ucted that such act or acts on the part of said Jernigan would not be unlawful, provided he used no more force than was necessary.”

This charge is subject to various objections. It is on the weight of evidence, and it reverses the rule of law in Texas, which is that a case is viewed from the defendant’s standpoint, and not that of the state or the deceased. This charge tries the defendant from the theory that the deceased was being tried for an attack on appellant. Jernigan was dead. The issue was whether or not appellant had brought about an unlawful homicide, and, among other things, from his viewpoint that he was acting in self-defense. This charge authorizes the jury to try Jerni-gan from the standpoint and on the theory he had the right of self-defense, applying the rule of unnecessary force and an attack by defendant and the law of retreat as to Jerni-gan, and not the defendant. The rule has-been fundamental in Texas without an exception, so far as I know, that when the accused is being tried for a homicide, the law does look at it, and the jury must regard it from the standpoint of the defendant, and not that of the deceased or the state. This charge reverses that rule, and virtually informs the .jury that they must try Jemigan from his standpoint of self-defense, as if he was acting in self-defense, and the defendant was not, and it tested appellant’s right before the jury on the law of self-defense from the standpoint of the deceased. This charge is so obviously wrong that this judgment ought to have been reversed without discussion.

There are other questions in the case I do not purpose to discuss. This judgment ought to have been reversed, and the cause remanded.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J. HARPER, J. DAVIDSON, J.

license: Public Domain

text:
    EADS v. STATE.
    (No. 3478.)
    (Court of Criminal Appeals of Texas.
    March 24, 1915.
    On Motion for Rehearing, May 19, 1915.)
    1'. Homicide <&wkey;300 — Triai^Instructions.
    A charge that if deceased made an attack on defendant, indicating a purpose. to take his life, or do him serious injury, or if, from the acts or words of the deceased, it reasonably appeared to accused that he was in imminent danger, although the danger was not real, he should, under those circumstances, be acquitted, is not erroneous as limiting accused’s right to defend against an actual attack.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <&wkey;300.]
    2. Criminal Law <&wkey;763, 764^-Instructions —Threats.
    A charge that if deceased had made threats against accused, and such threats had been communicated, or reports of threats, whether actually made or not, had been reported to accused, and accused shot deceased, who, at the time of the killing, did some act reasonably indicating he was about to put his threats into execution, accused should be acquitted, is not erroneous as requiring the jury to find that deceased actually made the threats.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. &wkey;763, 764.]
    3. Criminal Law &wkey;>192 — Former Jeopardy.
    Accused was acquitted of murder in the first degree, on express .malice, and convicted of murder in the second degree, on implied malice, which conviction was reversed. Thereafter the Legislature changed the law, consolidating the crimes of murder in the first and second degree, defining the elements of both degrees as constituting one offense. On a second trial accused elected to be tried under the old law. Held, the reversal of the conviction for murder in the second degree did not preclude a conviction of murder on implied malice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 376, 377, 379; Dec. Dig. <$¿^192.]
    4. Homicide <&wkey;166 — Trial—Evidence.
    In a prosecution for homicide, where accused claimed that deceased had improper relations with his wife, the state may show the wife’s good reputation for virtue.
    [Ed. Note.. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. <&wkey;>166.]
    5. Homicide <&wkey;17íL-EviDENCE — Admissibility.
    Where, until accused took the stand and admitted the killing, there was no positive evidence that he had slain deceased, it was not error to permit the sheriff, who arrested accused after discovering the body, to testify to finding a pistol an.d cartridges secreted in a loft.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. &wkey;174J
    6. Criminal Law <&wkey;C95 — Trial — Objections.
    An objection that testimony was irrelevant and immaterial without further specification is no objection, if the testimony was admissible under any theory of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. <5&wkey; 695.]
    7. Homicide <@=^169 — Prosecution — Evidence.
    In a prosecution for the murder of his father-in-law, it was the contention of the state that accused lay in wait for deceased as he went to lodge meeting, and killed him, while accused contended that their meeting was accidental, and that he killed in self-defense. Accused objected to evidence that deceased belonged to a lodge, which met the evening of the killing, on the ground that it was immaterial and would tend to prejudice any juror who was a member of that lodge. It did not appear that any juror was a member of the lodge, nor was the objection that the fact of the lodge meeting was unknown to accused made. Held, that, under the circumstances, the evidence was properly received.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. &wkey;169.]
    On Motion for Rehearing.
    8. Criminal Law <&wkey;1043 — Appead—Presen-tation op Grounds to Court Below — Necessity.
    Evidence which might have been admissible, had other evidence been offered, will not be excluded on a ground not raised in the court below.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. <&wkey;> 1043.]
    Davidson, J., dissenting.
    Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.
    Elbert Eads was convicted of murder, and he appeals.
    Affirmed.
    R. E. Taylor, of Henrietta, G. H. Culp, of Gainesville, J. L. Lackey, of Wellington, and C. C. Small, of Wellington, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

This is the third appeal in this case; the opinions on the former appeals being reported in 147 S. W. 593, and 170 S. W. 145. On this trial appellant was again found guilty of murder, and his punishment assessed at eight years’ confinement in the penitentiary.

The record discloses that appellant killed his father-in-law on the road from the latter’s home to Aberdeen, late one evening. Deceased and his wife had separated, but at the time of the homicide had again begun to live together. During the time of the separation, the record discloses ill will existed between appellant and deceased, and both had made threatening remarks. No one witnessed the fatal meeting other than appellant. He testifies when tie met Ms father-in-law in the road deceased said: “I have been laying for yon a long time. Why didn’t you sign that lie bill.” He replied: “Old man, I have stayed at home and tried to shun you to Keep from having trouble with you, and you had better go on home and leave my business alone.” That deceased then said, “I will attend to your business for you;” and as he said this threw himself forward in his saddle and reached toward his hip pocket. That from the language used, and deceased’s action, viewed in the light of the threats that had been communicated to him, he thought his life was in danger, and he drew his pistol and shot.

In one exception to the court’s charge, appellant contends that the court limited his right to defend against an actual attack. If this was the proper construction to give the charge, there might be some merit in the contention, but this paragraph reads:

“Now if you shall believe from the evidence that defendant, Elbert Eads, killed A. J. Hopkins, yet if you believe the deceased made an at-* tack on the defendant then indicating a purpose to take the life of the defendant, or of doing him some serious bodily injury, or if from the acts or words of the deceased at the time it then reasonably appeared to the defendant that he was in danger of losing his life, or of suffering serious bodily injury at the hands of the deceased, even though there was no actual danger in fact, but only apparent danger, and that such danger reasonably appeared to the defendant to be imminent and pressing, viewing the matter from the standpoint of the defendant alone, and in the light of the circumstances as they then reasonably appeared to the defendant, and under such circumstances defendant shot and killed A. J. Hopkins, if you so find, in either event, you should acquit the defendant.”

Appellant also contends that, in submitting the issue of threats, the court required the jury to find that deceased made the threats. Again we would say, if that paragraph was subject to such criticism, there would be merit in the contention, as the state contested that deceased had made any threats. But the paragraph reads:

“Now if you shall find that the deceased made threats against the life of the defendant, and that such threats had been communicated to the defendant before the difficulty in which deceased lost his life, or if you find that report of threats had been communicated to the defendant, whether they were actually made or not, and you find at the time of the homicide, if any, the deceased did some act which then reasonably indicated to the defendant that he was then in imminent and pressing danger at the hands of the deceased of losing his life or of suffering serious bodily injury, and that deceased was then about to put such threats into execution, and acting upon such danger or apparent danger, as it reasonably appeared to the defendant at the time, viewed from his standpoint, and under such circumstances he shot and killed the deceased, he would be justified, and you should acquit the defendant.”

In addition to tMs, the court, at the request of appellant, also gave the following special charge:

“You are further instructed, as to the law in this case, that if you find that defendant had been told that deceased had made threats against his life, and he believed that said threats had been made by deceased at the time of the homicide, then, in that event, he would have the right to act the same as if the threats had been actually made, although you should find that no such threats were in fact made.”

Appellant admits that, in giving tMs special charge, the law was correctly applied, but insists that it is in conflict with the above paragraph of the court’s main charge in submitting the law of self-defense on the issue of threats. By a careful reading of the two paragraphs it will be seen there is no conflict in the two, for in the main charge the court not only told them if they believed threats had been made, but also instructed them that:

“If jury found report of threats had been communicated to defendant, whether they were actually made or not, and at the time deceased did some act which reasonably indicated to defendant that deceased was then about to put such threats into execution, he would be justified.”

Neither of the paragraphs are subject to the criticisms — in the first instance, that appellant was restricted to an actual attack; and, in the second, he was restricted to threats actually made.

All the special charges requested by appellant were given; and the only other criticism of the court’s charge is that the court erred in authorizing the jury to find appellant guilty of murder upon implied malice ; the contention being that as upon the former trial appellant had been acquitted of murder upon express malice, or murder in the first degree, and found guilty of murder upon implied malice, or murder in the second degree, as the amended law had consolidated the two degrees, and defined the elements of both the former degrees as constituting now one offense, appellant could not now be tried for murder upon implied malice. The record discloses that at the close of the testimony the court asked appellant if he desired the case submitted under the old law, or the new law, and appellant’s counsel replied, “We will have it submitted under the old law;” that is, the law in force at the time of the commission of the offense. We have several times discussed this question, and do not deem it necessary to do so again. The Legislature has never repealed the law defining a killing upon implied malice as murder, but merely consolidated and defined as one offense murder upon express -and upon implied malice.

There are several bills of exception in the record relating to the introduction of the testimony. Three of them complain that different witnesses were permitted to testify that the reputation of Mrs. Elbert Eads, appellant’s wife, for virtue and chastity was good. Appellant in Ms testimony had stated that he had caught deceased in an act of carnal intercourse with his wife, and to another act of indiscretion. The state could offer any legitimate testimony at its command to rebut such testimony. The law closed the mouth of his wife, unless he elected to call her as a witness, and this he did not do. Appellant, in killing his wife’s father, had •closed his mouth, and it seems that appellant placed the transaction at such a time and place that no other witness could have seen the transaction, and the only testimony at the command of the state to rebut this testimony was the reputation of his wife for virtue and chastity, and the court did not err in admitting the testimony. Cameron v. State, 153 S. W. 867.

It appears that, when deceased was found dead, the sheriff that night went to appellant’s house and arrested him, and, aft•er the arrest, the sheriff made search for arms and found a pistol in the loft, and some •cartridges. 1-Ie testified to such facts, also as to the condition of the pistol. Appellant ■objected to this testimony on the ground that he was under arrest and was not with the sheriff when the pistol was found. Until appellant testified, there was no positive •evidence that he had slain the deceased; without his testimony, it would be a case of circumstantial evidence, and the court did not err in admitting the testimony.

There are but two other bills of exception in the record.

The first reads:

“Be it remembered that, upon the trial of the above entitled and numbered cause, the state proved by the witness Jim Light that the upper floor of the Aberdeen store building was used for lodge purposes, to wit, by the Odd Fellows and Woodmen. To this testimony the defendant objected, because the same was immaterial •and irrelevant; the object and effect of such testimony being to show that deceased belonged to said lodge, which testimony would be prejudicial to the defendant from the fact that it would serve to prejudice any juror trying the case who might belong to either of said lodges.”

The second reads:

“Be it remembered that, upon the trial of the •above entitled and numbered cause, the defendant objected to the following questions and answers to and from the state witness Tom Wall; to wit: ‘Q. Do you know when the lodge met •at Aberdeen? Do you know whether or not any lodge met there that Saturday night? A. They did not. Q. Was that a meeting night of the lodge that he was killed? A. It was.’ To •all of this testimony the defendant objected, because it was not relevant to any issue in this •case, and likely to prejudice the minds of the .jury against the defendant, that it was not applicable to any issue involved; and such testimony was calculated to arouse the prejudice in the minds of the jury against the defendant for the reason that, if any of said jurors should he members of such lodges, they -would be prejudiced against any one changed with the murder •of his deceased fraternal brother.”

The court says, in approving these bills, •that the only objection made at the time was that the evidence was immaterial and likely to prejudice the minds of the jury. But take the bills as they are presented by appellant, and give full effect to all the objections therein stated, the record fails to disclose that any member of the jury belonged to either the Odd Fellows or the Woodmen; and certainly, under such circumstances, the objection that such testimony was calculated to arouse prejudice, if any of the jurors belonged to either of the orders, is not well taken. If there was an allegation that some of the jurors did belong to either of the orders, or any proof of that fact, there might be merit in the contention. The objection that the testimony was irrelevant and immaterial, without further specifications, is no objection, if the testimony would be admissible under any theory of the case. McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941; Carter v. State, 37 Tex. Cr. R. 403, 35 S. W. 378. It is made apparent that this testimony was introduced to show that deceased was on his way from home to a meeting of the lodge at the time he was shot. If the objection had been made that this fact was unknown to appellant, and the state would not therefore be permitted to show why deceased was at this place, it would perhaps have been a good objection and should have been sustained. But, in case that objection had been made, it may be that the state was in possession of evidence to prove that appellant knew that deceased traveled this road on Saturday evenings on the way to a meeting of this order, and for this reason appellant made no such objection. For if the state had made such proof, then the testimony would clearly have been admissible. And, in the absence of any objection that such facts were unknown to áp-pellant, we cannot now make such objection for him and presume that he was not aware of these facts, or that the state could not have so proven, if such an objection had been made. Wilkerson v. State, 31 Tex. Cr. R. 86, 19 S. W. 903; Blain v. State, 34 Tex. Cr. R. 417, 31 S. W. 366; Loakman v. State, 32 Tex. Cr. R. 561, 25 S. W. 20. Again, in Bozanno v. State, 60 Tex. Cr. R. 507, 132 S. W. 777, this court held:

“The testimony was explanatory of the presence of the deceased at the place where he was killed, which was quite a distance from the place where his mother saw him, and was a mere matter of inducement. The cases in which the actions, declarations, and intentions of a decedent are held not to be admissible against a defendant who has no notice of them has always been limited to cases where the issue of self-defense arose in the case, and where such acts and movements of the deceased could be held to be hostile in their character, and where such defendant had a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent.”

An explanation that deceased was on his way to a meeting of the lodge could not and would not, in the least, tend to explain any of the hostile acts of deceased to which appellant testified, and which he relies on as a justification. He says when he met deceased that deceased said: “I have been laying for you a long time. Why didn’t you sign that lie bill?” referring to a report which the record discloses appellant had put in circulation, and which deceased had asked appellant to retract. Appellant says be re-I>lied: “Old man, I have stayed at borne and tried to sbun you to keep from having trouble with you, and you bad better go on borne and leave my business alone.” That then deceased said, “I will attend to your business for you,” threw himself forward in bis saddle, and threw his band to bis hip pocket as if to draw a weapon, and, in the light of the communicated threats, he thought his life was in danger. If this is true, it would be immaterial where deceased was going; it would not abridge appellant’s right of self-defense; and such evidence would not tend to explain to what would, under such circumstances, seem to appellant hostile acts of deceased. The state’s theory of the case was that appellant took this road to his home, when there were others leading thereto, hid himself in a depression in the road, and shot deceased. If appellant was aware that deceased traveled this road on the way to the lodge on Saturday evenings, this would be material evidence for the state. And as before said, in the absence of an objection made by appellant that he was not aware that deceased traveled this road on his way to the lodge, and such facts were unknown to him, we cannot now make such objection for him, for it may be, as herein-before stated, that, had he offered such objection to the testimony, the state could and would have shown that he was aware of the fact that it was the habit of his father-in-law to travel this road on Saturday evening on his way to the lodge. They lived but a few miles apart, were related by family ties, and would be supposed to be on familiar terms, at least until the trouble arose, which this record discloses occurred only a few months before the fatal encounter. The record discloses deceased’s daughter and appellant had been married for years, and were the parents of three children.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). Appellant was convicted of murder in the second degree; his punishment being assessed at eight years’ confinement in the penitentiary.

Proper exception was taken to the following charge:

“Now if you shall believe from the evidence that defendant, Elbert Eads, killed A. J. Hopkins, yet if you believe the deceased made an attack on the defendant, then indicating a purpose to take the life of the defendant, or of doing- him some serious bodily injury, or if, from the acts or words of the deceased at the time, it then reasonably appeared to the defendant that he was in danger of losing his life, or of suffering serious bodily injury at the hands of the deceased, even though there was no actual danger in fact, but only apparent danger,” etc.

We think the exception is well taken. There was no evidence of any actual attack in this case. The evidence was one purely of demonstration on the part of deceased as if to draw a pistol and appellant shot. Upon another trial the court’s charge should be limited to the case as made by the facts. There was no occasion for submitting an actual attack, when there were no facts to support it. The state introduced no evidence to show an actual attack, and the defendants evidence was purely and simply a demonstration as if to draw a pistol. It was not a case of actual but of apparent danger only.

It will also be noticed that the charge submits entirely the belief of the jury, not the belief of the defendant. If the defendant believed that deceased reached for his pistol, then to him there was apparent danger. It is not what the jury believed about it, but it is what the defendant believed at the time. The appearance of danger is to be viewed from his standpoint, and as he saw it, and not as the jury believed about it.

An exception was reserved to the thirteenth subdivision of the charge, which reads as follows:

“Now if you shall find that the deceased made threats against the life of the defendant, and that such threats had been communicated to the defendant before the difficulty in which deceased lost his life, or if you find that report of threats had been communicated to the defendant, whether they were actually made or not, and you find at the time of the homicide, if any, the deceased did some act which then reasonably indicated to the defendant that he was then in imminent and pressing danger at the hands of the deceased of losing his life or of suffering serious bodily injury, and that deceased was then about to put such threats into execution, and acting upon such danger or apparent danger, as it reasonably appeared to the defendant at the time, viewed from his standpoint, and under such circumstances he shot and killed the deceased, he would be justified,” etc.

The objection to this charge was that it required the jury to find that threats had actually been made by deceased against the defendant, and in fact it is not necessary that such threats should have been actually made, if they had been conveyed to defendant, and he believed same, he had the right to act upon threats, even though such threats had not been made and such information given to the defendant may have been false. The appellant asked a charge, which was given, which correctly presented the law of the case, but the trouble here is the court had given two charges which are contradictory; the court’s charge being error. In the court’s charge the jury was required to believe that the threats had been made, and that they should believe that the reported threats had been communicated to defendant. Again it may be stated these charges are contradictory. One submitted it to be determined by the jury whether these matters occurred, and the other that they had been communicated to .defendant, and he believed them. Upon another trial the charge with reference to threats should be given correctly. If these threats had been communicated to defendant, and he believed them, he was entitled to be acquitted from that standpoint, provided, of course, the deceased made some act, but this should he viewed from the standpoint of the defendant, that he believed such things, and not that the jury believed them. It was a serious question in the ease, and one that involved defendant’s liberty before the jury. The charge of the court is incorrect, and that requested by appellant is correct, and the two charges stood before the jury in this contradictory position. They may have believed that defendant’s testimony was false, or they may have discarded it. They may have believed the threats were not made, when in fact the defendant did believe it. The law of self-defense depends upon his belief, and not the belief of the jury. As was said by Judge Harper on the former appeal of this case (170 S. W. 146):

“The defendant testified to threats being communicated to him. Two witnesses testified they had communicated the threats to defendant. The state did not concede that the threats had been made, but seriously contested that issue, and yet the court in his charge required the jury to find that the threats had been made, instructing them: ‘Now if you shall find that the deceased had made threats against the life of defendant, and that such tln-eats had been communicated to the defendant,’ etc. This is not the law where there is an issue in the case as to whether or not the threats had been made; but if defendant had been told that threats had been made by deceased, and he so believed, he would have the right to act, even though the threats had not in fact been made. Buckner v. State, 55 Tex. Cr. R. 517, 117 S. W. 802, and cases there cited.”

Now we have an erroneous charge given by the court and a special requested instruction by the defendant, which was practically correct. The two charges are in direct conflict. The question may be asked: By which charge was the jury governed? Inasmuch as he was convicted, we are led to the conclusion they were controlled by che court’s main charge, and not the special instruction given. If they believed threats were not made or communicated, then appellant’s theory of the case had vanished. They may have believed that, and the verdict of the jury indicates they did believe it.

There are bills of exception reserved to the introduction of testimony. These are to the effect that the state was permitted to introduce testimony that deceased, at the time of the meeting between himself and appellant, was en route to attend a lodge meeting in the town of Aberdeen. There is nothing to show that defendant knew the deceased was going to Aberdeen to attend a lodge, and the evidence shows it was an accidental meeting; the appellant going one way and the deceased coming in the direction that caused them to meet. If appellant had traveled the road that he was traveling, knowing the deceased was coming that way and was going to the lodge, this testimony might have been admissible. The undisclosed motives or purposes of deceased could not affect the appellant’s right of self-defense, at least unless it was shown that he anticipated or believed or knew that he would meet the deceased or come in contact with him. See Bozanno v. State, 60 Tex. Cr. R. 507, 132 S. W. 777. In that case Judge Ramsey uses this language:

“The first is that the court erred in permitting- the witness Mrs. Albert Dunlap, over the objection of defendant, to testify as to the movements and actions of the deceased, Denny Harris, on the day of the homicide and prior thereto, because said actions and movements were not in the presence of appellant, and there was no testimony showing that he had any knowledge of said actions and movements of Denny Harris, and appellant could not be charged with the knowledge of such movements and the causes thereof. This witness testified in substance that deceased left her house about 11: 30 o’clock the morning he was killed; that he came by where she was stopping with her daughter; that he had a lead horse; that he stated he was going out to George Foreman’s to take the horse there; and that he was going to the next house to get a saddle. This, it appears from the statement of facts, was objected to for the reason that appellant was not present, and the movements of Harris on that day cannot be charged to him and is no evidence against him. The testimony was explanatory of the presence of the deceased at the place where he was killed, which was quite a distance from the place where his mother saw him, and was a mere matter of inducement. The cases in which the actions, declarations, and intentions of a decedent are held not to be admissible against a defendant who has no notice of them has always been limited to cases where the issue of self-defense arose in the case, and where such acts and movements of the deceased could be held to be hostile in their character, and where such defendant had a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent.”

Following that rule and its application, we are of opinion that the testimony of the fact that deceased, on the particular occasion, had left his home and was going to Aberdeen to attend a lodge meeting, where there is no evidence to show defendant knew of it, and that the meeting was accidental, would be inadmissible. It was crucial testimony in the case, as shown by the opinion in the Singleton Oase, 167 S. W. 46, and quite a number of other cases. If appellant knew, or had reason to believe, that he would meet the deceased, and that he was going to the lodge, and he traveled this road for the purpose of meeting him, or knowing that he would meet him, under the facts of this ease, the animosity and threats which had been communicated to him, it would be admissible against him, and would be damaging testimony, for the defendant in this case testified he could have gone another or other road home. So, without making some showing that appellant understood or believed he would meet the deceased, this testimony was inadmissible, and it was on a very crucial point in his case, affecting his right of self-defense. This testimony ought not to have been admitted. The court in his explanation says he admitted it on the theory of res gestae. The doctrine of res gestee does not apply.

For the reasons indicated, I think the judgment ought to be reversed, and the cause remanded.

The above was written, but my Associates did not agree with ine, wherefore they wrote the affirming opinion.

On Motion for Rehearing.

HARPER, J.

Appellant has filed a motion for rehearing herein, and his counsel have filed an able brief in support thereof. The earnest insistence of counsel, and the fact that our senior justice, Judge DAVIDSON, has filed a dissenting opinion, has caused us to give to the record, the argument of counsel, and the authorities cited, most careful and thoughtful study.

The first ground complains of the charge of the court on self-defense in two particulars:

“First, the charge makes the right of the defendant to depend upon actual attack made by the deceased; and, second, the charge complained of only required the jury to believe from the evidence that defendant killed deceased Hopkins, and only required the jury to believe that deceased made an attack on the defendant that indicated a purpose upon the part of the deceased to take the life of defendant.”

If these criticisms of the charge are just, then the argument of appellant would be sound, but the charge, copied in the original opinion, shows that the court instructed the jury:

“If, from the acts and words of the deceased at the time, it then reasonably appeared to defendant that he was in danger of losing his life, or of suffering serious bodily injury at the hands of the deceased, even though there was no actual danger in fact, but only apparent danger, and that such danger reasonably appeared to the defendant to be imminent and pressing, viewing the matter from the standpoint of the defendant alone, and in the light of the circumstances as they reasonably appeared to the defendant, and under such circumstances defendant shot and killed A. J. Hopkins, you should acquit the defendant.”

This is not a charge upon actual danger, but upon reasonable appearances of danger, as it appeared to the defendant, and not, as contended, as it appeared to the jury. The charge itself answers the criticisms and shows them not to be well founded. It does not limit appellant’s right to act from actual danger alone, but authorizes an acquittal of appellant, if from the acts and words of deceased it reasonably appeared to him (appellant) that he was in danger of losing his life or in danger of suffering serious bodily injury at the hands of deceased.

It is next contended that the court’s charge on threats “makes the right of appellant’s right of self-defense depend upon the deceased putting actual throats into execution, and that threats had in fact been made.” We would say again, if the charge does do so, it is error, but we do not think the charge is subject to any such construction. In this instance, as in the other, this paragraph of the charge is copied in full in the original opinion, and it instructs the jury:

“If you shall find that report of threats had been communicated to defendant, whether they were actually made or not, and you find at the time of the homicide, if any, the deceased did some act which then reasonably indicated to the defendant that he was then in imminent and pressing danger at the hands of deceased of losing his life, or of suffering serious bodily injury, and that deceased was then about to put such threats into execution, and acting upon such danger or apparent danger, as it reasonably appeared to the defendant at the time, viewed from his standpoint, and under such circumstances he shot and killed the deceased, he would be justified, and you should acquit the defendant.”

This excerpt shows that the court did not require the jury to find that the threats had been actually made, but instructed them if threats had been communicated to defendant, whether actually made or not, he would have the right to shoot and kill, if deceased at the time by his acts or words manifested an intention to kill him or do him serious bodily injury. Nor is this charge in any way in conflict with the special charge requested and given, but the special charge is but supplemental to this charge, and emphasizes the fact that defendant had the right to act, if threats had been communicated to him, and he was led by the acts and conduct of deceased, in the light of the communicated threats, to believe his life was in danger. The only authority that appellant cites us to is Buckner v. State, 55 Tex. Cr. R. 517, 117 S. W. 802, opinion 'on motion for rehearing. With the law as announced in the Buckner Case we agree, as is manifest by our opinion on the former appeal in this case reported in 170 S. W. 140. In the Buckner Case, supra, the court instructed the jury, “If you believe the deceased had made such threats,” etc. In this case the court instructs the jury, “If you find that report of threats had been communicated to the defendant, whether they were actually made or not.” There appears to be no difference between appellant and this court on the law, but rather on the construction to be given language used by the court. A reading of the charge on this matter, copied in the original opinion, will, we think, demonstrate that the construction attempted to be placed by appellant on the language used by the court is untenable, and the charge of the court is in strict conformity with the law as announced in the Buckner Case, and by this court on the former appeal in this case, and in all cases decided by this court, so far as we are aware.

In the next place appellant contends that we erred in holding that the lower court committed no error in admitting the evidence of the witnesses Light and Wall, over the 'objections then made, appellant admitting that no objection was made that appellant did not know of deceased’s custom in going to the lodge, and did not object that the motive of deceased in going this road was unknown to him; but he contends that, whether he made such objection at the time or not, if he now calls our attention to such objection to the testimony we ought to hold that the trial court committed error. To do so would overrule every decision heretofore rendered by this court.

In McGrath v. State, 35 Tex. Cr. R. 422, 34 S. W. 127, 941, this court held:

“Where the objection is to the admissibility of testimony, the very ground of objection should be stated, * * and that the specific ground of objection should be stated.”

In McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93, it is held that a bill of exceptions must disclose the ground or grounds of objection to the testimony, and grounds not stated are not entitled to be considered on appeal, citing Willson’s Crim. Proc. § 2516, and authorities there cited, and Cline v. State, 34 Tex. Cr. R. 347, 30 S. W. 801; Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847; Smith v. State, 4 Tex. App. 627.

This is also the rule of our Supreme Court; it being held that a bill of exceptions to evidence must state ground of objection to the testimony in order to receive consideration. Coleman v. Smith, 55 Tex. 257; Gulf Ry. v. Brown, 16 Tex. Civ. App. 111, 40 S. W. 608. And our Court of Civil Appeals hold that:

“An objection to testimony not shown in the bill of exceptions will be disregarded on appeal.” Fields v. Haly, 52 S. W. 116.

In fact, this seems to be the universal rule.

In Thompson on Trials, § 2786, it is said:

“Objections made in the course of the trial must be stated to the trial court and must be incorporated in the bill of exceptions. An appellate court can consider only such objections as were presented to the trial court, and thus brought to its notice for review” — citing authorities from almost every state in the Union.

We could continue the citation of authorities, but they will be found collated in sections 857 and 1123 of White’s Ann. Code Cr. Proc. .The reason is plain, if the objections urged at the time, in the light of the testimony in the case, are not tenable; if the objections sought to be urged in the appellate court for the first time had been made in the trial court, they might also have been shown by evidence not to be tenable. It is the objections urged at the time the testimony is offered we are permitted to .consider. In the original opinion we demonstrate, we think, the objections in the trial court were not tenable, and this is not contested in the motion for rehearing, but it is only insisted that we should permit them in this court, for the first time, to urge an objection to testimony not offered at the time the testimony, was admitted. As before said, to so hold would overrule all the decisions of this court heretofore rendered from the day of its organization, and we are not willing to do so, for we think the rule is a correct one, and the opinions so holding state many sound reasons for doing so. In fact, the rules adopted by our Supreme Court provide that:

“Exceptions to the admission of evidence, where the ground of objection is assigned, shall be considered in reference to the objection made to it.”

These are all the grounds stated in the motion for a rehearing; but, in a supplemental argument filed, exception is taken to the statement that the state’s theory was:

“That appellant took this road to his home, when there were others leading thereto, hid himself in a depression in the road, and shot deceased.”

The exception made is that the record does not bear out the deduction “hid himself in a depression in the road.” We have carefully read the record again, and it shows that appellant traveled a road going east from Aberdeen’s store a short distance, then turned south in a lane that would lead to the home of deceased. In this lane are two depressions, one a very deep one, which the record shows the appellant had got beyond; a second ■ depression, in which some of the witnesses say deceased was lying; others say he was lying just as one would come out of this second depression. Some witnesses say that one traveling this lane going north could not see one in this depression until he got near it. The defendant’s testimony is otherwise. But it will be noticed that in the opinion we merely stated what was the state’s theory of the case, and this appellant does not question, but only insists that the record would show that the killing took place on the brow of the hill, after coming up out of the depression. We make this statement as appellant’s counsel seem to desire it to be done, but this fact would have no bearing in passing on the questions raised on this appeal.

The motion for rehearing is overruled.

DAVIDSON, J.

I dissent to the overruling of the motion, but do not care to write further than shown in filed dissenting opinion.
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