This case was affirmed on a former day of this term, and although appellant assigned many grounds in his motion for new trial, all of which were passed on in the original opinion, in his motion for rehearing in this court appellant assigns but one ground, and it was not raised at the time of the trial nor in the motion for new trial, and is sought to be raised for the first time in this court.
The crime of which appellant was convicted is alleged to have occurred April 17, 1912. At that time the law divided murder into two degrees — murder upon express malice and murder upon implied malice. The punishment for murder upon express malice was by death or imprisonment for life, while the punishment for murder upon implied malice was by confinement in the penitentiary for any length of time not less than five years. The court so instructed the jury in his charge, and the jury found appellant guilty of murder upon express malice and assessed his punishment at imprisonment in the penitentiary for life. The court submitted his charge to counsel for inspection, among them being some of the ablest lawyers in that section of the State where the trial took place. No objection was made to the court thus instructing the jury. In the motion for a new trial no complaint of the charge in this respect was urged. However, in this court for the first time, months after the trial court had adjourned, appellant contends that as the trial took place April 23, 1914, he had a right to have the law applied as fixed by the Act of the last Legislature, wherein the degrees of murder were consolidated, and the punishment fixed for murder upon either express or implied malice at either death, imprisonment for life, or any term of years not less than five. As the punishment for murder upon express malice was authorized to be ameliorated by the jury, he had the right to have the punishment affixed at the time of the trial to the offense. This no one will question, but the law that so says also says that under such circumstances the person on trial shall have the right of election as to which punishment he will have submitted to the jury. Article 15 of the Penal Code reads: "When the penalty for an offense is prescribed by one law, and altered by a subsequent law, the *Page 382 penalty of such second law shall not be inflicted for a breach of the law committed before the second shall have taken effect. In every such case the offender shall be tried under the law in force when the offense was committed, and if convicted, punished under that law; except that when by the provisions of the second law the punishment of the offense is ameliorated, the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by the law in force when the offense was committed."
Appellant was not represented by inexperienced men, but able and astute lawyers. They are supposed to know the law — at least the law charges them and all other men with knowledge of its provisions. When the charge as written, applying the law as it existed at the time of the commission of the offense, was submitted to them, and they made no objection thereto, as the law now provides they shall do if they object to any of its provisions. As they made no complaint thereto in the motion for a new trial, and none while the case was pending in the court where tried, the presumption is, that as the law authorized them to do so, appellant elected to be tried under the law as it existed at the time of the commission of the offense, which they had a perfect right to do. Complaints of this character can not be raised for the first time in this court, but must be raised in the court where the case is tried. We had occasion to discuss this question in the case of Wright v. State, 73 Tex. Crim. 178, 163 S.W. Rep., 976, and James v. State, 72 Tex. Crim. 457, 163 S.W. Rep., 61, and in many cases since then, and we refer to those cases wherein we give reasons why the question here presented can not be raised in this court for the first time.
The motion for rehearing is overruled.
Overruled.