In an extended motion for rehearing appellant argues various supposed defects in the charge, and we again call attention to the fact that there was no exception taken to said charge, and hence we are in no position to discuss or consider objections here raised for the first time.
Complaint is renewed of our failure to hold it reversible error for the court to refuse special charges Nos. 9, 10 and 11. Referring to the last special charge named, we see no reason in this case to believe it erroneous for the court not to have given a charge instructing the jury that they should take into consideration all the facts and circumstances of the case in deciding whether or not the accused acted under duress; nor do we observe any advantage to be gained by appellant by the submission of special charge No. 10 which merely presented in a different form, matters covered by the main charge of the court.
In regard to special charge No. 9, we observe that appellant did not take the stand in this case and testify that she aided, advised or encouraged the killing, or was otherwise a principal to the killing of her husband because of any specific threats made by Jim Ballew, nor do the facts in the record otherwise than a few expressions of appellant as given in her testimony upon the trial of said Ballew, and in his habeas corpus hearing, sustain or support the proposition that she acted in the premises through fear of loss of life or personal injury, or from threats of such character as rendered her incapable of resistance. We are inclined to believe that under the facts of this case appellant's defensive theory, if any was raised by her testimony as given on Ballew's trial, which was introduced in this case, in support of the proposition of acting under duress, would be governed by the rule laid down by our legislature in Art. 52 of our P. C., which provides that when the facts have been proved which constitute the offense, it devolves upon the accused to establish *Page 106 the facts or circumstances on which he relies to excuse or justify the prohibited act or omission. The court having given in the general charge, reasonable doubt as applicable to the whole case, and having instructed the jury specifically in regard to the defense of duress, and the facts tending to support said defensive theory appearing in the condition that they are, we think we correctly applied the rule of Art. 743 of our C. C. P. which forbide the reversal of a case for any error in the charge unless it was such as, in the opinion of this court, was calculated to injure the rights of the appellant. The undisputed facts in the case show that appellant had been writing letters to and having conversations with Ballew for some time prior to the date of the killing indicative of a conspiracy; that the threat relied upon by her as having been made by Ballew was directed solely at the proposition of her inducement to her husband to come out to where Ballew was. The uncontroverted facts show that after she induced her husband to go to where Ballew was on the night of the homicide, she then went without any threats or compulsion of any character whatever, with the two men to a point a mile or mile and a half away at which place Ballew shot and killed deceased. Nothing appears in the record to indicate but that appellant could have desisted after she had taken deceased to where Ballew was, and she could have taken her departure or gone away at any time between that point and where the killing occurred.
Upon this record we are not impressed with the facts that appellant has not had a fair and impartial trial and the motion for rehearing will be overruled.
Overruled.