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 park 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 threats into execution, and that threats had in fact been *Page 658 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 madeor 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 ways 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.Crim. Rep., 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 74 Tex.Crim. Rep.. 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 *Page 659 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.Crim. Rep., this court held: "Where the objection is to the admissibility of testimony, the very ground of objection should be stated, and that the specified ground of objection should be stated." In McGlasson v. State,38 Tex. Crim. 351, 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., sec. 2516, and authorities there cited, and Cline v. State, 34 Tex.Crim. Rep.; Buchanan v. State, 24 Texas Crim. App., 195; Smith v. State, 4 Texas Crim. App., 626. 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. 254; Gulf Ry. v. Brown, 16 Texas Civ. App. 102[16 Tex. Civ. App. 102]. 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. Haley, 52 S.W. Rep., 115. In fact, this seems to be the universal rule. In Thompson on Trials, section 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. 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 he 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 *Page 660 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.
Overruled.