
    LASATER v. STATE.
    (No. 5893.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1920.
    Rehearing Granted Feb. 9, 1921.)
    1.'Criminal law <§=723(l), 1037(2) — Prosecutor’s praise of decedent’s family improper, but not reversible error in absence of objection.
    Prosecuting attorney’s apostrophe to the various members of deceased’s family who were present contributing to the sympathetic effect of his closing address, calculated to arouse the jury’s sympathy, is improper in a murder trial, but where it contained no misstatement of any issue, and no objection was made thereto and no special charge on the subject requested, it does not constitute reversible error.
    2. Witnesses <&wkey;274(2)— Character witnesses may be cross-examined as to reports heard by them.
    When a defendant puts his reputation in issue, his witnesses may be asked if they had not heard of specific instances of his misconduct which, if true, would affect such reputation, and the fact that such misconduct was against defendant’s wife, child, mother, or other relative does not alter the rule.
    3. Homicide &wkey;>l63(l) — Where defendant introduced evidence of reputation, state could show his criminal prosecution 17 years prior.
    In prosecution for manslaughter, where defendant introduced evidence to show that his reputation from his boyhood was good both for truth and veracity and for his being a peaceable and law-abiding citizen, • held, that the state could show his prosecution about 17 years be-on a seduction charge.
    4. Criminal law <&wkey;384 — No definite rule as to remoteness of evidence.
    There is no hard and fast rule fixing a given number of years beyond which an event becomes too remote to have weight in testimony, the application of the rule of remoteness being affected by the facts of the particular case.
    5. Criminal law <&wkey;>36l(I) — Witnesses 4&wkey; 404 — Evidence may be offered to deny, contradict, or explain evidence offered by adverse party; character evidence may be contradicted.
    Where one side presents an issue and evidence in support thereof, the other side may deny, contradict, or explain such evidence, so as to show its falsity or break its force and effect; and this rule applies to the contradiction of character evidence.
    On Motion for Rehearing:
    6. Witnesses <&wkey;>345(l) — Practice as to impeachment of character stated.
    Proof that one has been convicted of felony is admissible when the character of such person has become a legitimate issue, and a witness may be asked if he has not been convicted of a felony, confined in jail or the penitentiary, and upon his denial such fact may be proved; but the practice is not limited to this method.
    7. Witnesses <&wkey;>296 — May be compelled to state whether he has been arrested.
    A witness may be compelled to answer a question as to whether he has been convicted of a felony, confined in jail or the penitentiary.
    8. Homicide <@=>163(I) — Evidence of defend.ant’s previous arrest without showing arrest was legal held inadmissible.
    Where a defendant prosecuted for manslaughter introduced evidence showing his good reputation, state’s witness’ testimony that he had arrested defendant for seduction 17 years prior thereto held inadmissible, because not showing that such felony charge was legally made by way of indictment or complaint, or that the arrest was by virtue of capias or warrant.
    9. Homicide <@=>165 — 'Testimony as to defendant’s marriages and divorce cases held inadmissible.
    In a murder prosecution, it was error to allow the state to introduce evidence relating to the marriages of defendant, and that he had been sued by each of his wives for divorce.
    Appeal from Criminal District Court, Dallas County; Robt B. Seay, Judge.
    E. W. Lasater was convicted of manslaughter, and he appeals.
    Reversed and remanded on rehearing.
    Puckitt, Mount & Newberry, Robert B. Allen, Jr., and Robert B. Allen, all of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of the offense of manslaughter, and his punishment fixed at five years’ confinement in the penitentiary.

A number of bills of exceptions appear in the record, all of which have received our careful attention, but we deem none of sufficient importance to discuss, except bills of exceptions Nos. 1, 2, and 3. It is urged in bill of exceptions No. 3 that counsel, prosecuting privately, used improper argument to the jury in his closing address. Examining the same, we find that.it was a sort of an apostrophe to the various members of the family of deceased who were present, and contributing to the sympathetic effect of such speech by their conduct. We have held •that such appeals as appear in this bill are calculated to arouse the sympathy of the jury, but it appears that no objection was made to any of the matters thus transpiring until the said argument was concluded, and, further, that no special charge on the subject was asked. There appearing no misstatement of any material facts prejudicial to appellant, no personal abuse, such as is calculated to arouse prejudice against him, and no misstatement of any issue by which he could have suffered injury, we have always held that no reversible error is presented in this condition of the record.

By his bill of exceptions No. 2, appellant complains that the prosecuting attorney was permitted to hold in his hand, in close proximity to the Jury, certain papers, stated to be those pertaining to divorce cases theretofore filéd against appellant by his two vs^ives, and to ask such questions relative thereto as to injure the appellant. This bill is qualified by the trial court in such manner as to show that when the first question was asked relative to a divorce some papers were then held in the hand of the state’s attorney, but immediately upon objection being made the jury was withdrawn, the objection was sustained, and that said papers were no longer held in view of the jury, exhibited, or referred to. It appears that appellant had put in issue his reputation both for truth and veracity and as a peaceable, quiet, law-abiding citizen, and also as a kindly, generous man, and that as affecting such reputation the witnesses mentioned in this bill were asked relative to whether or not they had heard of cruel treatment on the part of the accused toward his two wives. This was objected to also. We think that when a defendant puts his reputation in issue, as affecting their knowledge, his witnesses may be asked if they had not heard of specific instances of his misconduct, which, if true, would affect such reputation, and we do not think that the fact that such misconduct was against his wife, child, mother, or other relatives would alter the rule, or make such evidence inadmissible.

During the trial, and when introducing its rebuttal evidence, the state placed on the stand a witness who was asked if he had ever arrested appellant on a felony charge, to which the witness answered that he had; and in response to a further question stated that he had arrested appellant for seduction. The defense asked him when said arrest took place, and he replied, “In 1903.” The time of this trial was in 1920. Appellant objected to this evidence when offered, because same was of an occurrence too remote, and asked the court to exclude the same from the jury, which objection was sustained, and the court told the jury that a man’s reputation might not be attacked by proof of his arrest more than 10 years prior to the time of the trial, and since it had developed that more than 10, years (had elapsed since said arrest, they would not consider the evidence for any purpose.

This was all that transpired relative to this matter in the presence of the jury. It further appears from the bill of exceptions, however, that before this evidence was offered by the state the trial court was informed privately by the defense, in the presence of the prosecution, that such evidence would be offered, and that it was too remote, and therefore objectionable; also, the defense requested the court to instruct the prosecution not to ask anything relative to such arrest in the presence of the jury. The aver-ments of said bill further show that the court then stated privately to said parties that under the law no such evidence would be admissible if it related to an arrest more than ten years prior to the trial, but refused to instruct counsel for the state not to propound questions relative thereto. No contention was made by the'státe that the defense was in error as to the fact that the arrest occurred some 17 years before the trial, but, as we understand the bill of exceptions, there was agreement on this point between the state and the defense. We think if the trial court be apprised before evidence is offered of its erroneous character, and there be then entire agreement between the state and defense as to same, the court should not permit it in evidence. Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679; Vick v. State, 71 Tex. Or. R. 50, 159 S. W. 50.

We know of no hard and fast rule which fixes a given number of years beyond which an event becomes too remote to have weight in testimony. The application of the rule of remoteness is somewhat difficult, being affected by the facts of the particular case. See Bibb v. State, 215 S. W. 312, for discussion of this principle and citation of authorities. It appears from the facts in the instant case that appellant, prior to the introduction of the testimony complained of in this bill of exception, had proven by a number of witnesses that his reputation from his boyhood’ up to the time of the trial was good, both for truth and veracity and as being a peaceable, law-abiding citizen.

It is well established that when one side presents an issue and evidence in support thereof, the other side has the right to deny, contradict, or explain the evidence offered in support of such issue, so as to show its falsity, or break its force and effect. Branch’s Ann. P. C. p. 62. If one party offer testimony as to the reputation of a witness, or a party involved, at any time or place, the opposing party may offer testimony which, either directly or in effect, contradicts or tends to break the force of that offered. The effect of proving the existence of a charge of felony against a witness is an attack upon his reputation, and we have no doubt of the fact that evidence that a "felony charge was made or pending becomes admissible when it is in proof by the other side that at the time such felony charge was made the reputation of the party so attacked was good. It follows that we think no error was committed in the introduction of the testimony under discussion, under the facts of this case, and that no injury resulted to appellant by reason of the fact that the state was allowed to ask relative to the arrest of appellant for a felony at a time which was covered by bis testimony establishing bis good reputation.

. Finding no error in tbe record, tbe judgment of tbe trial court is affirmed.

On Motion for Rehearing.

Proof that one has been convicted of a felony is admissible when tbe character of such person has become a legitimate issue. Tbe usual method followed in such case is to ask such person, when a witness, if be has not been so convicted, confined in jail, or the penitentiary, an,d upon his denial prove such fact; but the practice is not and should not in reason be limited to this method. The issue is the credibility of the witness, and, as affecting same, proof that he is a felon is not confined to his statement.

In many jurisdictions he may not be compelled to answer as to such fact, and the proof thereof may not be by parol. Johnson v. State, 48 Ga. 116; State v. Boyd, 178 Mo. 2, 76 S. W. 979; Miller v. Commonwealth (Ky.) 113 S. W. 518; People v. Reinhart, 39 Cal. 449; Commonwealth v. Walsh, 196 Mass. 369, 82 N. E. 19, 124 Am. St. Rep. 559, 13 Ann. Cas. 642; State v. Smith, 129 Iowa, 709, 106 N. W. 187, 4 L. R. A. (N. S.) 539, 6 Ann. Cas. 1023; Zanone v. State, 97 Tenn. 101, 36 S. W. 711, 35 L. R. A. 556.

In this state it is well settled that he may not only be asked such question when on the witness stand but compelled to answer, and if he deny, proof may be made aliunde. See Branch’s Annotated Penal Code, §§ 167, 168. The doctrine as it now obtains in this state was laid down in Lee v. State, 45 Tex. Cr. R. 51, 73 S. W. 407, where we said:

“We understand the rule laid down in the books and authorities above cited to be that the witness can be compelled to answer that he has been convicted or indicted for a crime imputing moral turpitude, if such is the fact, or the indictment or record of conviction can be introduced to attack his credibility. In other words, the witness can be attacked as well by one method as the other.”

As approving same, we cite Fannin v. State, 51 Tex. Cr. R. 41, 100 S. W. 916, 10 L. R. A. (N. S.) 744, 123 Am. St. Rep. 874; Wilson v. State, 78 S. W. 232; Brittain v. State, 47 Tex. Cr. R. 602, 85 S. W. 278. In the case last cited this court.held that, irrespective of whether such question was asked, it might be proven that the accused, who had taken the witness stand, was a common prostitute. Reason supports the doctrine. That one is a convicted felon or a common prostitute is not a particular instance, proof of which leads to confusion of issues and is usually objectionable. It is a legitimate attack upon the general credibility of the witness, and when the life or liberty of the individual or the interests of organized society are at stake, it is of the highest importance that the jury, who are the exclusive judges of the facts and the credibility of the witnesses, should know who and what the witnesses are. That the effect of proving by the witness himself, or otherwise, a convic-: tion of felony, is an attack upon his reputa-1 tion, is also well settled, and numerous au-i thoritios might be cited holding that when it is shown that one has been charged or convicted of crime, or has made contradictory statements, etc., his general reputation for truth and veracity is thus put in issue. Coombes v. State, 17 Tex. App. 258; Payne v. State, 40 Tex. Cr. R. 290, 50 S. W. 363; Goode v. State, 57 Mo. App. 239; Harris v. State, 49 Tex. Cr. R. 338, 94 S. W. 227. There would seem to be neither logic nor reason in holding the converse not to be also true.

The manner and substance of the particular interrogation in the instant case escaped our attention when the matter was before us upon original hearing. Witness Seall, who testified in regard to the matter, was asked, “Did you ever arrest the defendant for a felony?” and answered, “Yes, sir.” He was then asked, “What was the felony?” and answered, “Seduction.” This ended the .■ matter, except that he stated on cross-ex- ’ animation that this was in 1903. We doubt if this was such showing that a charge had been legally made against appellant for such felony as would make the testimony admissible. It does not appear that an indictment was returned, or even that complaint was lodged, or that the arrest was by virtue of capias or warrant. In order to make admissible the fact that one has been charged or incarcerated for felony, it must appear that same was legal.

In addition to the above, we have concluded that it was material error to allow the state to place before the jury facts relative to the marriages of appellant and that he had been sued by each of his wives for divorce. Such facts seem in no way related to the transaction which involved this unfortunate homicide, nor to shed any legitimate light thereon. Webb v. State, 36 Tex. Cr. R. 43, 35 S. W. 380; Hightower v. State, 53 Tex. Cr. R. 487, 110 S. W. 750; Jennings v. State, 42 Tex. Cr. R. 82, 57 S. W. 642.

Fon the reasons appearing above, appellant’s motion for rehearing is granted, and the judgment is now reversed and the cause remanded. 
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