
    BEREAL v. STATE.
    (No. 5939.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1920.)
    1. Homicide <&wkey;181 — Deceased’s intimacy with defendant’s wife admissible to' corroborate communication of fact to defendant.
    In a prosecution for murder, claimed ' to have been committed as the result of passion reducing the crime to manslaughter, evidence of deceased’s criminal intimacy with defendant’s wife was admissible to corroborate evidence that she communicated such fact to defendant before the killing.
    2. Homicide i&wkey;l8l — That defendant’s wife, whom he believed to have been intimate with deceased, prior to marriage, was an inmate of a house of prostitution, held inadmissible.
    In a murder prosecution, where defendant sought to reduce the crime to manslaughter because of sudden passion on learning of deceased’s criminal intimacy with defendant’s wife, where her conduct'had been good for seven years, except with deceased, evidence that she had, prior to marriage, been an inmate of a house of prostitution was not admissible, even under Pen. Code 1911, art. 1134, relating to evidence of character of insulted female.
    3. Witnesses &wkey;274(2) — Question to witness testifying to defendant’s good reputation held improper.
    In a prosecution for murder, where a witness had testified to defendant’s'good reputation, it was improper to ask him if he would have so testified if he had known that defendant had married a whore.
    Appeal from District Oourt, McLennan County; Richard I. Munroe, Judge. ,
    Mike Bereal was convicted of murder and he appeals.
    Reversed and remanded.
    Jno. B. McNamara, and Taylor & Forres-ter, both of Waco, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted of murder in the district court of McLennan county, and his punishment fixed at eight years’ confinement in the penitentiary.

In our view of this case, it must he reversed, because the trial court withdrew from the consideration of the jury, and instructed them not to consider a large amount of evidence introduced by the defense, tending to show undue intimacy between the wife of appellant and the deceased prior to the homicide. It appears from the record that appellant was originally permitted to place this evidence before the jury upon his promise to show that the same was known or had been communicated to him prior to the killing. After the testimony of both sides had closed, the state made the point that it had not been shown that the facts in said testimony had been communicated to appellant, and, the court being of like view, withdrew said testimony, and instructed the jury as above. This action of the court was duly excepted to.

The theory of the appellant was manslaughter at most, predicated on the fact that a short time before the homicide his wife had admitted to him that she had been intimate with deceased, and the evidence seems strongly to support appellant’s theory. When a homicide occurs, and the theory of the defense is that same was committed as the result of passion, caused by insulting words or conduct of the deceased toward a female relative, it is necessarily true that it must be shown that it was known or communicated to the accused that such insult had been given; and it might appear that, there being testimony to the effect that he had been apprized of such insult, the truth or falsity of whether or not such insulting words or conduct had in fact occurred would not be material, and evidence thereof would not be admissible. This is not sound, for even though there be testimony to the effect that such insult was communicated to the accused, it,is usually given by his witnesses —frequently an interested wife, sister, or other relative — and the issue is still before the jury as to the truth of the fact of such communication, to be decided by them from all the evidence in the case. If in fact it can be shown that the deceased was guilty of uttering the alleged insulting words, or that he indulged in the insulting conduct, such testimony materially strengthens the probable truth of the fact of the communication thereof to the accused, and is admissible as corroborative. Hill v. State, 52 Tex. Cr. R. 245, 106 S. W. 145; Fossett v. State. 41 Tex. Cr. R. 405, 55 S. W. 497; McAnear v. State, 43 Tex. Cr. R. 521, 67 S. W. 117; Davis v. State, 70 Tex. Cr. R. 37, 155 S. W. 549; Walker v. State, 70 Tex. Cr. R. 84, 156 S. W. 208. The authorities cited by the state as combating the soundness of this view will be found, upon close examination, not to justify such citation. In McVey v. State, 81 S. W. 740, there was no claim that the killing was because of insults to the daughter of the accused, and this court rightly held that an insulting statement of deceased toward said daughter, which was never communicated to the accused before the killing , was not admissible. In Wright v. State, 36 Tex. Cr. R. 427, 37 S. W. 732, there was no claim that the accused shot deceased at their first meeting after the utterance of the alleged insult, or that such insult had ever been conj>municated to him. In Cockerell v. State, 32 Tex. Cr. R. 585, 25 S. W. 421, the trial court correctly rejected evidence of an uneommunieated insult some years before the homicide.

Front the evidence it will appear that appellant and his wife had been, married some seven years at the time of this homicide. The appellant claimed that he shot deceased because of the intimacy of the latter with the wife of appellant, of which fact he was informed only a short time before the homicide. The state contested the proposition that said killing was upon sudden passion, arising from said adequate cause; and introduced in evidence, over the objection of appellant, the fact that prior to her marriage to appellant said wife had been an inmate of a house of prostitution. This was evidently thought to be admissible, under article 1134 of our Penal Code, which sets forth that in every case where an unlawful killing is sought to be reduced to manslaughter .by proof that the accused acted upon sudden passion, caused by insulting words or conduct of the deceased toward a female relative, it shall be competent to prove the general character of the female insulted, in order to ascertain the extent of the provocation. Appellant’s wife testified that, after meeting him while an inmate of said house of prostitution,'she left said house and went to live with her mother; and some months thereafter married the appellant, and that she had been true to him in every way until the coming of the deceased some months before the homicide. No evidence in the record disputes this testimony. No witnesses testified to any immorality of the woman after she became appellant’s wife, until the appearance of the deceased upon the scene. We cannot agree with the proposition that a man who has married a Magdalene may not love and be loved in return, and that she may not become the guarded object of his conjugal care. The man who frequents the houses of fallen woman may feel that he is no better than they, and it would seem might link his fortunes with one of them without forfeiting his right. to care for her and protect her thereafter; and if from the time of their marriage, he have every reason to believe her true and faithful to him, he should have every right arising in behalf of another man in defense of the honor of his wife, while she occupies to him that relation. If the manslaughter was admitted to be predicated on some insulting words regarding her character before she married, or if immorality on her part subsequent to her marriage appeared to be known to appellant, the case would be different, but if for seven years the woman had been appellant’s wife, without lapse, we think he might invoke the law of manslaughter unhindered by proof of what she had been before they married. Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 716.

For substantially the same reason, we think the question to the witness Faulkner, who had testified to appellant’s good reputation, wherein he was asked if he would have so testified if he had known that appellant had married a whore, was improper.

There are other errors complained of in the record, which we do not think necessary to notice, as they will probably not occur upon another trial.

For the reasons mentioned, the judgment of the trial court is reversed, and the cause remanded. 
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