ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant’s motion is concerned with the proposition that we erred in disposing of his bill of exceptions No. 7, in which the deceased’s wife was allowed to testify to the fact that the deceased had difficulty in straightening up his body when he arose from a sitting position.
' Appellant did not testify; he did not say that he thought the deceased was crouched or stooped over and attempting to hide or conceal himself behind the booth in which he was shot; he did not say that such position created any kind of impression upon his mind. The stooped-over position of the deceased’s body when he arose from attempting to fix the tire is not shown to have any bearing on appellant’s actions herein. True it is, some of the eye witnesses who testified said that the deceased, when he arose, walked in a stooped-over position into the booth, but nowhere in the record is it shown that such a position on the part of the deceased had any influence over the fact that appellant shot the deceased immediately after the walk in the stooped-over position by deceased.
It is noted that appellant objected to the introduction of this testimony by Mrs. Thorell as to the condition of the deceased and his inability to immediately straighten up after having been in a sitting position, in the following language:
“Whereupon, the defendant objected to said question and the answer thereto because the same was immaterial, as to his physical condition, and because evidence was irrelevant and immaterial, and because such evidence was not in rebuttal of any testimony offered in the case.”
The main objection appearing to be that such testimony as to the deceased’s physical condition was irrelevant and imma*413terial, and not in rebuttal of any testimony, etc. The objection now offered to us in appellant’s brief and motion being that if such a defect was present in the deceased that caused him to walk in a stooped-over position, it is not shown that such was known to the appellant, and therefore he should not be charged with knowledge of such. Unfortunately for appellant’s contention, he did not see fit to thus inform the trial court, and we think such a belated objection now comes too late.
In all events, we think that such an act upon the part of the deceased in thus walking in a stooped-over position was not shown by the testimony to have had any effect upon the appellant’s mind. Thus believing, and on account of appellant’s failure to make known to the court a proper objection thereto, we do not think the matter to be of sufficient importance to warrant a reveral hereof; nor do we think we should enlarge the well established rule that demands that a proper objection should be leveled at the time of the proffered testimony. We do think such testimony was material, and we do also think same was admissible as upon rebuttal.
In view of what we here say, the motion for rehearing will be overruled.