This is the third appeal in this case, the opinions on the former appeals being reported in 66 Tex.Crim. Rep., 147 S.W. Rep., 592, and 74 Tex.Crim. Rep., 170 S.W. Rep., 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 he met his father-in-law in the road, deceased said, "I have been laying for you 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 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, 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 *Page 650 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 hadbeen communicated to the defendant whether they were actuallymade 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 suchthreats 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 this, 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 this 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 the 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 *Page 651 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, that 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 his 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,69 Tex. Crim. 439, 153 S.W. Rep., 867.
It appears that when deceased was found dead, the sheriff that night went to appellant's house and arrested him, and, after the arrest, the sheriff made search for arms and found a pistol in the loft and some cartridges. He 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, towit: 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 *Page 652 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, towit: `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. 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 be members of such lodges they would be prejudiced against anyone charged 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 ofthe 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.Crim. Rep.; Carter v. State, 37 Tex.Crim. Rep.. 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 appellant, we can not 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.Crim. Rep.; Blain v. State, 34 Tex. Crim. 417; Lookman v. State, 32 Tex.Crim. Rep.. Again, in Bozanno v. State, 60 Tex.Crim. Rep., 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 *Page 653 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 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 then deceased said, "I will attend to your business for you," threw himself forward in his saddle and threw his hand to his 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 can not now make such objection for him, for it may be as hereinbefore 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.
Affirmed.