This is a conviction for murder, with punishment assessed at twenty-five years in the penitentiary.
The killing occurred as a result of the adulterous relations between appellant and the wife of the deceased. Those relations arose and appear to have been brought about by the advances and encouragement of the deceased’s wife.
Appellant, the wife of the deceased, and her small daughter were parked in an automobile upon a side road some four or five hundred feet from the paved highway. The deceased drove up and started toward the car, at which time the appellant shot him with a rifle. Just prior to the shooting, deceased was heard to say, “I’ve got you both where I want you” and “Stop, stop, I haven’t got a gun.”
The defensive theory was self-defense from an attack of deceased, coupled with threats both communicated and uncommunicated.
The court submitted the law of self-defense and both direct and communicated threats and the appellant’s two claims for reversal pertain to such instructions.
In charging on self-defense, the court predicated appellant’s right of self-defense upon a reasonable apprehension or fear of death or serious bodily injury.
Appellant objected to the instruction on the ground that it was too restrictive and insists that he was entitled to an instruction on the right to defend himself against an attack less than deadly — as provided by Art. 1224, V.A.P.C.
Art. 1224, supra, authorizes self-defense where the attack is of a violent character and while the person killed is in the very act of making such unlawful and violent attack and not when he is about to attack or is doing some act preparatory to an attack. Jones v. State, 125 Tex. Cr. R. 454, 69 S.W. 2d 65; Broussard v. State, 137 Tex. Cr. R. 273, 129 S.W. 2d 295; and Smith v. State, 152 Tex. Cr. R. 145, 210 S.W. 2d 827.
*418In giving application to this statute, it has been the consistent holding of this court that an accused is not entitled to an instruction on the right of self-defense against a milder attack unless the evidence shows that the injured party was making an actual attack upon him at the time of the homicide. Boykin v. State, 148 Tex. Cr. R. 13, 184 S.W. 2d 289; Herrera v. State, 159 Tex. Cr. R. 175, 261 S.W. 2d 706; and Lopez v. State, 162 Tex. Cr. R. 533, 287 S.W. 2d 946.
The testimony of the three eyewitnesses to the shooting, including the appellant, shows that the deceased was some distance away from the appellant when the fatal shots were fired. Under the testimony, it is not shown that the deceased was making an actual attack upon the appellant at the time, and therefore an instruction on the right to defend against a milder attack was not required.
In his brief, appellant insists that the charge on self-defense is subject to the criticism as being a charge on excessive force. An examination of the charge does not reflect that it is subject to such criticism.
Appellant next contends that the court’s instruction on the law of threats presents reversible error because the court required the jury, before considering the appellant’s right to act thereon, to believe the threats were actually made, rather than instructing the jury that if the appellant believed the threats had been made he would be justified in acting thereon.
It has been held that a charge which requires the jury to find that the threats were actually made is erroneous, although the error is not ground for reversal if the evidence is clear and undisputed that they were made. 22 Tex. Jur., par. 299, page 1074; Carey v. State, 74 Tex. Cr. R. 112, 167 S.W. 366; Kelly v. State, 68 Tex. Cr. R. 317, 151 S.W. 304; and Fisher v. State, 146 Tex. Cr. R. 16, 170 S.W. 2d 773.
The state’s witness Permer testified to a threat against appellant by the deceased. Appellant testified he had heard of the threat against him which had been made to Parmer. There was no testimony contradicting the evidence as to threats.
Under the uncontradicted testimony showing the threats to have been made, and no issue having been made thereon, we overrule appellant’s contention that the charge complained of presents reversible error.
*419Appellant insists that the court’s charge on threats was too restrictive in that it was limited to threats by the deceased to kill or inflict serious bodily injury upon him. Appellant contends that the charge should have included threats by the deceased to inflict injury upon him of less than death or serious bodily injury.
The threat relied upon by the appellant was that he had been informed that the deceased was carrying a large dirk knife for him, and that if he ever caught him he would fix him where he would never know another man or woman.
Such threat was clearly one to inflict death or serious bodily injury upon the appellant and not a threat to inflict a lesser injury upon him.
Under such testimony, we perceive no error in the court’s charge limiting the jury’s consideration to threats by the deceased to kill or inflict serious bodily injury.
Finding the evidence sufficient to support the conviction and no reversible error appearing in the record; the judgment of the trial court is affirmed.
Opinion approved by the Court.