White, Presiding Judge.
The homicide out of which this prosecution arose occurred over twenty-one years before appellant was brought to trial for the murder.
In so far as the motion in arrest of judgment on account of supposed substantial defects in the indictment as a charge for murder of the first degree is concerned, suffice it to say that the question has been repeatedly decided in opposition to the grounds taken in the motion, and the latest and fullest discussion of the subject, together with all the authorities collated, can be found in the opinions delivered in the case of Sharpe v. The State, 17 Texas Ct. App., 486. An indictment charging a murder to have been committed with “malice aforethought” charges murder of the first degree. (Willson’s Crim. Forms, No. 388, p. 173.)
On the examination of the State’s witnesses it was made to appear by the testimony of the witnesses Wright and Braley, from declarations made by defendant to them, that some three weeks prior to the homicide, Saffell, the deceased, had shot and seriously wounded appellant. These declarations concerning this previous difficulty and shooting are in substance the same as they are detailed by each of these witnesses, and we reproduce them from the testimony of Braley because stated by him more concisely. This witness was the sheriff of Ellis county, who arrested defendant. He says, “ before I arrested him, and before I told him I was sheriff of Ellis county, I asked him if he was the man that killed Saffell. He said, 6yes, I am the man.’ He also said that he ‘ did it in self-defense,’ and £ I thought I had a right to; he had shot me down about three weeks before and left me for dead, and had sent me word that if that shot did not kill me he had another that would, and I knew my only -chance was to kill him. I shot him about eighty steps off, and hit him within two inches of where I aimed.’ ” All the evidence showed [376]*376that deceased was shot in the back, and his wife, who was with him at the time, testifies that he was shot from the brush behind them, and that they could not see and did not know who did the shooting.
In connection with this testimony defendant proposed to prove by his son, A. F. Penland, all the facts and circumstances attending the shooting of defendant by deceased; subsequent threats made at different times by deceased to different persons against defendant; that on several occasions between the shooting of defendant and the killing of Saffell the latter was seen in and about the premises of defendant, both in the day and night time, and that these things had been communicated to defendant; which evidence was, upon objection by the prosecution, excluded by the court as irrelevant and immaterial.
As here involved, the question is not the admissibility of explanatory acts and declarations of defendant with reference to parts of acts and declarations admitted against him, and consequently the rule provided by article 751 of the Code of Criminal Procedure with regard to such explanatory matters is not applicable. If admissible at all, the proposed evidence was or could only be authorized and competent in support of or as throwing light upon the theory of the defense, which was justifiable homicide committed in self-defense. All the evidence, the admissions and declarations of defendant as well, wholly rebut the idea that the deceased, at the time he was killed, had the most remote idea of the proximity or presence of defendant,— much less that he was armed for the purpose, and at that time was meditating upon or manifesting any intention to carry into execution any previous threat made by him against the defendant. “ When a defendant accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat so made.” (Penal Code, art. 608; Logan v. The State, 17 Texas Ct. App., 50.)
Upon this point the language used by the court in Allen v. The State, 17 Texas Ct. App., 637, is peculiarly appropriate to the testimony exhibited in this record. “Evidence of threats made by the deceased against the defendant could afford no justification for the homicide, in the absence of any evidence showing that, at the time of the homicide, the deceased, by some act then done, manifested an intention to execute the threat. There was no such evidence [377]*377adduced on the trial, but, on the contrary, it was proved that the deceased was not making any demonstration whatever against defendant.” And this fact was established as well by the confessions of defendant as the testimony of deceased’s wife.
Deceased, who was a Confederate soldier, had been at home on furlough. He was spending his last Sabbath evening with his wife. In the morning he was to start to rejoin his command. He and his wife had strolled down into the creek-bottom; had sat upon the bank of the stream for half or three-quarters of an hour, talking of their future hopes and plans. They rose and started to return home, walking side by side, she with her arm around him, when, upon reaching a certain point in the pathway, of a sudden there is the report of a gun from the bushes in the direction from xvhich they have just come. He starts suddenly; she asks him if he is hurt; he answers yes, steps forward a few steps, falls forward upon his face, and is instantly dead. He is shot in the back, just an inch or so above the place where his wife’s arm was clasped about him, and where defendant said he had aimed to shoot him, so as to avoid shooting his wife through the arm. In the face of such testimony it is worse than idle and absurd to claim the protection of self-defense under the law of threats made by a deceased against his slayer. His own confessions as to how the homicide was committed fully corroborated the testimony of the wife of the deceased, and effectually eliminated all claim of self-defense on account of threats. The proposed evidence was wholly irrelevant, and could have thrown no light upon his conduct which would have tended in the slightest to justify it.
The theory of the defense is that defendant, from the antecedent circumstances and the threats which deceased had made against him, firmly and honestly believed that his own life would be taken unless he killed deceased, and hence that the killing was justifiable in self-defense. Hnder our statute homicide is permitted by law when inflicted for the purpose of preventing murder, but the killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense. (Penal Code, art. 570, subdivis. 2; Stevenson v. The State, 17 Texas Ct. App., 618; Boddy v. The State, 14 Texas Ct. App., 528.) This rule has been justly enlarged so as to embrace cases of reasonable apprehension of death or serious bodily injury, whether the danger was real or apparent; but the reasonable apprehension and appearances must be such as spring from and arise out of the acts and conduct of the deceased at the [378]*378time of the killing. (Smith v. The State, 15 Texas Ct. App., 338; Jones v. The State, 17 Texas Ct. App., 603.)
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White, Presiding Judge.
The homicide out of which this prosecution arose occurred over twenty-one years before appellant was brought to trial for the murder.
In so far as the motion in arrest of judgment on account of supposed substantial defects in the indictment as a charge for murder of the first degree is concerned, suffice it to say that the question has been repeatedly decided in opposition to the grounds taken in the motion, and the latest and fullest discussion of the subject, together with all the authorities collated, can be found in the opinions delivered in the case of Sharpe v. The State, 17 Texas Ct. App., 486. An indictment charging a murder to have been committed with “malice aforethought” charges murder of the first degree. (Willson’s Crim. Forms, No. 388, p. 173.)
On the examination of the State’s witnesses it was made to appear by the testimony of the witnesses Wright and Braley, from declarations made by defendant to them, that some three weeks prior to the homicide, Saffell, the deceased, had shot and seriously wounded appellant. These declarations concerning this previous difficulty and shooting are in substance the same as they are detailed by each of these witnesses, and we reproduce them from the testimony of Braley because stated by him more concisely. This witness was the sheriff of Ellis county, who arrested defendant. He says, “ before I arrested him, and before I told him I was sheriff of Ellis county, I asked him if he was the man that killed Saffell. He said, 6yes, I am the man.’ He also said that he ‘ did it in self-defense,’ and £ I thought I had a right to; he had shot me down about three weeks before and left me for dead, and had sent me word that if that shot did not kill me he had another that would, and I knew my only -chance was to kill him. I shot him about eighty steps off, and hit him within two inches of where I aimed.’ ” All the evidence showed [376]*376that deceased was shot in the back, and his wife, who was with him at the time, testifies that he was shot from the brush behind them, and that they could not see and did not know who did the shooting.
In connection with this testimony defendant proposed to prove by his son, A. F. Penland, all the facts and circumstances attending the shooting of defendant by deceased; subsequent threats made at different times by deceased to different persons against defendant; that on several occasions between the shooting of defendant and the killing of Saffell the latter was seen in and about the premises of defendant, both in the day and night time, and that these things had been communicated to defendant; which evidence was, upon objection by the prosecution, excluded by the court as irrelevant and immaterial.
As here involved, the question is not the admissibility of explanatory acts and declarations of defendant with reference to parts of acts and declarations admitted against him, and consequently the rule provided by article 751 of the Code of Criminal Procedure with regard to such explanatory matters is not applicable. If admissible at all, the proposed evidence was or could only be authorized and competent in support of or as throwing light upon the theory of the defense, which was justifiable homicide committed in self-defense. All the evidence, the admissions and declarations of defendant as well, wholly rebut the idea that the deceased, at the time he was killed, had the most remote idea of the proximity or presence of defendant,— much less that he was armed for the purpose, and at that time was meditating upon or manifesting any intention to carry into execution any previous threat made by him against the defendant. “ When a defendant accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat so made.” (Penal Code, art. 608; Logan v. The State, 17 Texas Ct. App., 50.)
Upon this point the language used by the court in Allen v. The State, 17 Texas Ct. App., 637, is peculiarly appropriate to the testimony exhibited in this record. “Evidence of threats made by the deceased against the defendant could afford no justification for the homicide, in the absence of any evidence showing that, at the time of the homicide, the deceased, by some act then done, manifested an intention to execute the threat. There was no such evidence [377]*377adduced on the trial, but, on the contrary, it was proved that the deceased was not making any demonstration whatever against defendant.” And this fact was established as well by the confessions of defendant as the testimony of deceased’s wife.
Deceased, who was a Confederate soldier, had been at home on furlough. He was spending his last Sabbath evening with his wife. In the morning he was to start to rejoin his command. He and his wife had strolled down into the creek-bottom; had sat upon the bank of the stream for half or three-quarters of an hour, talking of their future hopes and plans. They rose and started to return home, walking side by side, she with her arm around him, when, upon reaching a certain point in the pathway, of a sudden there is the report of a gun from the bushes in the direction from xvhich they have just come. He starts suddenly; she asks him if he is hurt; he answers yes, steps forward a few steps, falls forward upon his face, and is instantly dead. He is shot in the back, just an inch or so above the place where his wife’s arm was clasped about him, and where defendant said he had aimed to shoot him, so as to avoid shooting his wife through the arm. In the face of such testimony it is worse than idle and absurd to claim the protection of self-defense under the law of threats made by a deceased against his slayer. His own confessions as to how the homicide was committed fully corroborated the testimony of the wife of the deceased, and effectually eliminated all claim of self-defense on account of threats. The proposed evidence was wholly irrelevant, and could have thrown no light upon his conduct which would have tended in the slightest to justify it.
The theory of the defense is that defendant, from the antecedent circumstances and the threats which deceased had made against him, firmly and honestly believed that his own life would be taken unless he killed deceased, and hence that the killing was justifiable in self-defense. Hnder our statute homicide is permitted by law when inflicted for the purpose of preventing murder, but the killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense. (Penal Code, art. 570, subdivis. 2; Stevenson v. The State, 17 Texas Ct. App., 618; Boddy v. The State, 14 Texas Ct. App., 528.) This rule has been justly enlarged so as to embrace cases of reasonable apprehension of death or serious bodily injury, whether the danger was real or apparent; but the reasonable apprehension and appearances must be such as spring from and arise out of the acts and conduct of the deceased at the [378]*378time of the killing. (Smith v. The State, 15 Texas Ct. App., 338; Jones v. The State, 17 Texas Ct. App., 603.)
But, whilst a party is permitted by law to take human life to prevent any of the offenses named in article 570 of the Penal Code, yet “a bare fear of any of these offenses (murder, robbery, or the like), however well grounded, as that another lies in wait to take away the party’s life, unaccompanied with any overt act indicative of such an intention, will not warrant him in killing that other by way of prevention; there must be an actual (or apparent) danger at the time. (1 East’s Crown L., 272.) . . . The belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or at least is in apparent situation to do so, and thereby induces me reasonably to think that he intends to do it immediately. (4 Iredell, N. C., 409.) The right of resorting to force does not arise while the apprehended mischief exists in machination only. (1 Whart. Or. L., § 260.) No contingent necessity will avail; and when the pretended necessity consists of the as yet unexpected machinations of another, the defendant is not allowed to justify himself by reason of their existence.” (Lander v. The State, 12 Texas, 462.) “No apprehension of danger previously entertained will justify the commission of homicide; it must be an apprehension existing at the time the prisoner struck the blow.” (Iior. & Thomp. Cases Self-Def., 646 ; Holt v. The State, 9 Texas Ct. App., 572.)
A doctrine about the broadest and most favorable in its presentation of the rule of self-defense is stated by the supreme court of Kentucky in Bohannon’s case. It is said in that case: “ When one’s life has been repeatedly threatened by such an enemy (a desperate and lawless man), when an actual attempt has been made to assassinate, and when after all this his family have been informed by his assailant that he is to be killed on sight, we hold that he may lawfully arm himself to resist the threatened attack. He may leave his home for the transaction of his legitimate business, or for any lawful and proper purpose; and if on such an occasion he casually meets his enemy, having reason to believe him armed and ready to execute his murderous intention, and he does believe, and from the threats, the previous assault, the character of the man, and the circumstances attending the meeting, he has the right to believe that the presence of his adversary puts his life in imminent peril, and that he can secure his personal safety in no other way than to kill him, he is not obliged to wait until he is actually assailed. He may not hunt his enemy and shoot him down like a wild beast, nor has [379]*379he the right to bring about an unnecessary meeting in order to have a pretext to slay him, but neither reason nor the la w demands that he shall give up his business and abandon society to avoid such meeting.” (Bohannon v. The Comm., 8 Bush, 481; S. C., 1 Green’s Crim. R., 613; State v. Kennedy, 7 Nev., 137.)
But there is another view of the case suggested by one of the bills of exception in the record. Defendant proved by Judge Ferris that he, the witness, was district judge in Ellis county in 1864, and asked him “ what was the condition of the country in Ellis county in the spring of 1864 as to the ability of the courts to enforce the criminal and penal law's with efficiency?” The answer was excluded or not permitted on objection by the State that it was im: material and irrelevant.
A well-settled rule is that the right of self-defense does not arise when there is opportunity to restrain the assailant by process of law. (Foster, 277; 1 Hawk. P. C., ch. 29, § 17.) “ A man who believes his life in danger must, if he have access to a tribunal clothed with the ordinary powers of a justice of the peace, apply to such tribunal to interpose. If he have grounds enough to excuse him from killing the person from whom he believes himself in danger, he has ground enough to have that person bound over to keep the peace or committed in default of bail. And wherever this process can be applied, the endangered party is not excused in taking the law into his own hands. Where the conflict can be avoided, the law must be resorted to for redress. Of course the rule just stated presupposes the law gives machinery by which, if my life is threatened, I can cause the arrest of my expected assailant. Suppose, however, the law gives no such machinery? Am I to be shot down without the means of prevention by an assassin who will fire on me at sight? Am I to wrait to receive the shot in order to comply with the technical requisite that, before I can fire, an attempt should be made on my life? In a state of nature where there is no law to which I can appeal to have such a villain restrained, I am entitled, in order to save my life, to take the law into my own hands, though I do this at my own risk.” (Whart. on Horn. (2d ed.), §§ 488, 489.)
As we understand it, no such state of things was attempted to be proved by the witness. The very fact that he was district judge show's that the law had its machinery in operation, though the State was involved in a terrible war between the States, then going on. It is, moreover, shown by this record that this defendant and his son were arrested by the civil officers for this very homicide. The evidence sought was, in our opinion, irrelevant, immaterial, and properly denied.
[380]*380A number of other errors are complained of. We are free to confess that the record shows some irregularities which should not have occurred, but we fail to perceive how they could or have prejudiced the rights and interests of defendant. For aught that has been made to appear, defendant has had a fair and impartial trial, in which all his material, essential rights have been protected and secured him. The charge of the court, save in an immaterial particular, was the law of the case, and it was not error to refuse the requested instructions.
Long years have passed since this homicide was committed, yet the law knows no limitation as against the crime of murder. Defendant confessed to its commission and the circumstances of its commission. He has claimed that it was justifiable on the ground of self-defense. We have fully examined and discussed this defense in the light of the law and the facts. Manifestly the homicide was committed under circumstances showing no immediate danger or present necessity excusing it; no provocation at the time arousing a passion sufficient to reduce it to a lower degree of crime; no act, word or gesture of deceased which would or could extenuate or mitigate it; in a word, nothing which the law can consider in extenuation, mitigation, excuse or justification for the act. Of its character and degree there can be but one opinion. By every rule of law the crime was murder, and murder by lying in wait,— assassination,—murder in the first degree.
The judgment is affirmed.
Affirmed.
[Opinion delivered November 14, 1885.]