The offense is murder; the punishment, four years.
The appellant’s husband was erring in the direction of the deceased, which ired the appellant no end. The sole defense was that the appellant shot the deceased in self defense.
One Mitchell testified that the appellant called the deceased over to her automobile and shot her twice. He stated that he saw no weapon in deceased’s hand as she approached the appellant’s automobile.
Emma Sue Thompson testified that in a conversation with the appellant approximately two hours prior to the shooting the appellant had told her she intended to kill the deceased.
Appellant, testifying in her own behalf, stated that she had caught her husband in bed with the deceased shortly before the homicide and, with the aid of a broomstick, had forced him to return to his connubial bed. She stated that on one occasion the deceased chased her with a butcher knife and threatened to kill her if necessary in order to get her husband away from her and that similar threats had been communicated to her. She stated that on the day of the homicide the deceased approached her automobile saying, “I told you I was going to take him and I am even if I have to kill you,” and was attempting to get something out of her purse when she shot her.
The state introduced that portion of the appellant’s confession which recited that the deceased had never threatened to kill the appellant, and the defense introduced the remainder *291thereof, which recited the husband trouble and, further, that she called the deceased who came to her automobile and when the deceased “reached in at me * * * I got my gun out of my purse and shot her twice.”
The jury resolved the issue of self defense against the appellant, and we shall discuss the questions raised by bills of exception in the order advanced in brief and argument by eminent counsel for the appellant.
It is first urged that the trial court erred in not charging the jury in accordance with the terms of Article 1224, V.A.P.C., as to her right to defend against a lesser or milder attack as distinguished from a deadly attack. In Herrera v. State 159 Texas Cr. Rep. 175, 261 S.W. 2d 706, in discussing the necessity of a charge under said article, we said, “It has been the consistent holding of this Court that the attack there referred to has reference to an actual attack; that it does not have reference to, nor is it applicable when the injured party is about to make an attack or is doing some act preparatory to the attack.” See also Montes v. State, 163 Texas Cr. Rep. 416, 291 S.W. 2d 733, and Booker v. State, 165 Texas Cr. Rep. 44, 302 S.W. 2d 431. In the case at bar, the appellant saw no weapon in the possession of the deceased, and the most that may be said of the appellant’s testimony is that the deceased was preparing to make an attack against her and the appellant was afraid that the deceased would kill her. Under such facts, there was no necessity of giving the charge requested.
After the state had rested, the appellant called a witness who testified as to the appellant’s good reputation. When this witness was excused, appellant’s counsel stated, “If the Court please, I would like at this time to state our defense to the jury,” and the court replied, “I believe it is out of order after the beginning of your testimony.”
We observe at the outset that there was nothing new, complicated or unusual about appellant’s defense in the case at bar. Both parties were after the same man and were prone to resort to violence to attain their ends.
Reliance is had upon House v. State, 75 Texas Cr. Rep. 338, 171 S.W. 206. In that case the trial judge stated, “I will overrule the plain letter of the statute,” and this court concluded that he himself should be overruled. In the later case of McBride v. *292State, 110 Texas Cr. Rep. 308, 7 S.W. 2d 1091, we took another look at House and concluded as follows:
“We are of opinion that, the statute having' expressly granted to the accused at a certain time, and place in said procedure the right to make the statement, such right, if properly claimed, eannot be arbitrarily denied him. But, to avail himself of such right, he must either assert it in its proper order as laid down in the statute or else show good reason for not so doing.”
In the case at bar, there is no explanation made as to why the appellant did not offer to make his opening statement at the time Article 642, Y.A.C.C.P., says it should have been made, and since she has shown no good reason for varying from the terms of the statute, we would not be inclined to reverse a trial judge who insisted that the procedure outlined in the statute be followed. McBride is cited with approval as late as Foster v. State, 148 Texas Cr. Rep. 372, 187 S.W. 2d 575, and we are inclined to follow it, especially in view of the nature of the case and the trial court’s qualification to the bill in which he certifies that appellant’s counsel had already explained to the panel the full nature of the defenses which she expected to prove.
A request was made for a special venire. This trial was held after the effective date of the amendment of Article 601-A, V.A.C.C.P., in 1957, in a county in which the jury wheel was provided by law. Article 2094, V.A.C.S. The court’s qualification reflects that there had been called a regular panel of 100 jurors and that the jurors were present in the courtroom when appellant’s motion for a special venire was made. We are aware of no constitutional reason why the legislature mig*ht not enact Article 601-A, supra, which has been the law for more than twenty years, why its provisions could not be extended to include counties which do not have cities of certain population, or why the same should not be controlling here, and find no error in the court’s ruling in declining the request.
The Supreme Court of the United States, in an opinion by Justice Field in Hayes v. Missouri, 120 U.S. 68, 30 L. ed. 578, 7 Sup. Ct. 350, held that a state statute which provided for 15 peremptory challenges for the state in capital cases in cities having a population of over 100,000, while providing for only 8 challenges elsewhere in the statute, was not unconstitutional. See also Ocampo v. U.S., 234 U.S. 91, 58 L. ed. 1231, 34 Sup. Ct. 712; and Salsburg v. Maryland, 346 U.S. 545, 98 L. ed. 281, 74 Sup. Ct. 280, and the cases there cited.
*293Moore v. State, 162 Texas Cr. Rep. 517, 287 S.W. 2d 674, the latest case relied upon by the appellant, was tried before the effective date of the 1957 amendment of Article 601-A, supra.
A motion for continuance was filed due to the absence of the witness Sara Mae Fisher. No affidavit of said witness was attached to said motion nor to the motion for new trial, and no error is reflected in the action of the court in overruling- the same. Gonzales v. State, 161 Texas Cr. Rep. 488, 278 S.W. 2d 167, and Massoletti v. State, 165 Texas Cr. Rep. 120, 303 S.W. 2d 412.
No error is reflected in the action of the court in calling appellant’s case out of numerical order on his docket. Sowers v. State, 157 Texas Cr. Rep. 345, 248 S.W. 2d 949; Article 590, V.A.C.C.P.
Appellants’ last complaint relates to proof by the state that the deceased was a person of kind and inoffensive disposition. In the relatively recent opinion of this court in Clark v. State, 158 Texas Cr. Rep. 180, 254 S.W. 2d 106, we reaffirmed the rule laid down in Martin v. State, 112 Texas Cr. Rep. 524, 17 S.W. 2d 1069, and held that under the terms of Article 1258, V.A.P.C., the following, but no more, might be proved:
1. That the deceased was a man of violent or dangerous character.
2. That the deceased was a man of kind and inoffensive disposition.
3. That the deceased was a man who might be reasonably expected to execute a threat made.
The proof in the case at bar comes well within the statute and the holdings set forth above.
Finding no reversible error, the judgment of the trial court is affirmed.