Carefully reviewing appellant's bills of exception complaining of the testimony of various witnesses to the good reputation of deceased, we think same not open to the objections urged. Appellant's testimony presents a situation to which Art. 1143, Vernon's P. C., is entirely applicable. He testified to a long continued course of conduct on the part of deceased indicating ill-will toward appellant, a defiance of the authority and instructions of the latter who was the engineer upon the engine of which deceased was fireman; also that deceased cursed him out and told him that he, deceased, knew his business and would work to suit himself, that he was not going to stand for appellant to bawl him out, that if he did not keep his nose out of deceased's business he would cut appellant's damn throat, etc.; that' from the words and acts of deceased he reached the conclusion that he was liable to injury at the hands of deceased; that after deceased threatened him he, appellant, armed himself. Just prior to the homicide, according to appellant's testimony, deceased took a hand oiler and started out to oil the bell, and was told by appellant to leave the oilers alone, not to empty them as he would not fill them. Deceased replied, "Go to hell," and proceeded to oil the bell. Appellant testified that as deceased came back in, he said to deceased not to bother those cans any more, whereupon deceased struck at him with the oiler he had in his hand. When deceased raised the can to strike the second time appellant shot. The article of our statute above referred to authorizes proof of the character of the deceased in cases where self-defense is asserted against an attack or demonstration by the deceased preceded by threats. This is precisely what appellant claimed. It made no difference in law that the threats were made to appellant. Jirou v. State, 53 Tex. Crim. 18. *Page 612 We know of no authority attempting to distinguish between a conditional threat and one which is unconditional in reference to the proof of the reputation of deceased, but if there be such authority, then we would observe that the condition contained in the threat testified to by appellant had come about, for appellant said that he was criticising deceased when the latter made the demonstration or attack with the oil can.
The witnesses testifying to the reputation of deceased seem to us to have been qualified, and the complaint against the admission of that testimony is unfounded.
We know of no authority upholding appellant's contention that this judgment should be set aside on the ground that the verdict is against the testimony — the proposition being that if the jury believed the state's testimony appellant was guilty of murder, and if they believed his testimony he should have been acquitted on the ground of self-defense, and that there is nothing in the record to justify a verdict of manslaughter. The learned trial judge submitted manslaughter, and if there was any objection on the part of appellant to the submission of this issue, we fail to find it in the record. Appellant swore that he was afraid deceased would beat him to death with the oil can. He could not say what position either party occupied after the first shot was fired, or how many shots were fired. Asked by his counsel what was the condition of his mind at the time as to being agitated and excited, appellant replied that he had been agitated and excited for some time, that deceased had done everything he could to create disturbance and excitement, and that the feeling of appellant at the time was one of mixed fear and excitement.
We are not able to bring ourselves in accord with any of the contentions raised in appellant's motion, and same will therefore be overruled.
Overruled.