
    CHILDRESS v. STATE.
    (No. 6880.)
    (Court of Criminal Appeals of Texas.
    May 3, 1922.
    Rehearing Granted May 31, 1922.)
    1. Criminal law <§=>1087(2) — Unless record shows filing of bills of exceptions in. trial court, they cannot be considered on appeal. .■,
    Although bills of exceptions were approved by a trial judge, where the record fails to show, that they were filed in the trial court, they cannot be considered on appeal.
    On Motion for Rehearing.
    2. Larceny <§=>32(3) — Separate property of wife properly alleged to be her property.
    In an indictment for larceny of a grafanola, the separate property of a wife, an indictment alleging that the grafanola was the personal property of the wife was valid.
    3. Criminal law <§=>! 144(12) — On failure of. bills of exceptions to make clear that a statement by defendant was made while under arrest, its admission is presumed correct.
    In a prosecution for larceny, where testimony of an officer who arrested defendant that defendant said he had obtained a stolen grafa-nola from P. was excluded because defendant was at that time practically under arrest, and the state asked defendant, who was testifying as a witness, if he had not told the officer he obtained it from P., which was excluded, and later asked if the defendant had not so told the sheriff before he was placed under arrest,' which defendant admitted on appeal, on its being contended by defendant that only one conversation between him and the sheriff took place, and that defendant was under arrest at the time of making the statement, in view of the fact that the bill of exceptions did not make it clear that there was only one conversation, it will bo presumed the admission of. testimony was correct.
    4. Larceny <§=>6, 46 — Testimony of owner of stolen property as to what was paid for it and what had been offered for it held competent as aid in determining “value.”
    In a prosecution for larceny of a grafanola, testimony of the owner as to the price paid for it, and as to what had been offered for it, was competent as enabling the jury to determine its real “value” which, as it relates to stolen property, is the market value of the same at the time and place of the taking, if it had a market value, and, if not, the amount it would cost to replace the article.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series,'Value.]
    5. Criminal law <§=>1091 (I I) — Bills of exceptions in question and answer form are not proper.
    Bills of exceptions in question and answer jform are not proper.
    ,6. Criminal law <§=>371 (2) — Exclusion of evidence of illicit sexual relations between accused and owner of property alleged to be stolen held error.
    In a prosecution for larceny of a grafanola, defended on the ground that the owner had defendant secretly pawn it for money which defendant gave the owner, after testimony by defendant that the owner had asked defendant for money which he did not have, exclusion of evidence of illicit sexual relations between the accused and the owner of the grafanola was error, since such evidence would tend to show that defendant had pawned [he grafanola to raise money for the owner.
    7. Criminal law <§=>730(3)— Refusal to instruct to disregard question of state as to defendant’s reputation held error where it was not in issue.
    In a prosecution for larceny, in which the accused had not put his reputation as to being a law-abiding citizen in issue, refusal of a trial court to instruct the jury to disregard a question by - the state as to whether defendant was a law-abiding citizen, to which an objection for the defense was sustained, was error, since the court should have so instructed the jury of its own motion, and should have reprimanded the district attorney for asking the question.
    Appeal from District Court, Orange County; V. H. Stark, Judge.
    Max Childress was convicted of felony theft, and he appeals.
    Motion for rehearing granted, judgment of affirmance set aside, and judgment of trial court reversed^ and cause remanded.
    C. W. Howth, of Beaumont, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for felony theft, punishment being assessed at ttvo years’ confinement in the penitentiary.

Our Assistant Attorney General calls attention to the fact that none of the bills of exception appear from the record to have been filed in the lower court. They are approved by the trial judge, but, without the record shows the filing in the court below, they cannot be considered. Oliver v. State, 58 Tex. Cr. R. 50, 124 S. W. 637.

We have examined the statement of facts, and find the evidence sufficient to support the verdict. It being purely a fact case, as the record now appears we deem it unnecessary to set out the evidence.

The judgment of the trial court must be affirmed.

On Motion for Rehearing.

An opinion affirming the judgment was delivered May 3d. The bills of exception were not considered because the record failed to show that any of them had ever been filed in the court below. It is uow made to appear that the bills of exception in fact bear the file mark of the clerk, and that the same were filed in ample time to receive our consideration, but, by inadvertence, the transcript failed to show their filing. In connection with the motion for rehearing the bills will now receive our attention.

Appellant was convicted under the second count in the indictment charging him with theft of a grafanola. It is alleged in said count that the same was the personal property of Ruth Lyles, and that it was taken from her possession. The evidence disclosed that Ruth Lyles was a married woman ; that her husband was working in Louisiana, but would spend two or three nights at home each week; they sustained the relation of husband and wife. It is claimed that ownership and possession should have been alleged in him. It is shown by the evidence that the grafanola in question was the separate property of the wife, it having been purchased by her before her marriage with money given her by another party. In theft cases ownership of the separate property of the wife may be alleged to be in either the husband or the wife. Coombes v. State, 17 Tex. App. 258; Kauffman v. State, 53 Tex. Cr. R. 209, 109 S. W. 172; Smith v. State, 53 Tex. Cr. R. 643, 111 S. W. 939. The court, therefore, properly refused the special charge for a peremptory instruction to return a verdict of not guilty because the ownership of the property was alleged to be in Ruth Lyles, instead of J. R. Lyles.

It is made to appear (bills of exception 1 and 19) that while the sheriff was testifying he was asked if appellant had not told him that he had bought the grafanola in question from one Posey. The evidence was excluded because it appeared from the sheriff’s testimony that appellant was practically under arrest at the time. While appellant was upon the witness stand the district attorney asked him if he had not told the sheriff that he bought the instrument from Posey, and upon objection the answer at first was excluded. The district attorney then changed the question, and asked if he had not so told the sheriff before he was ever placed under arrest. The court permitted him to answer, and he admitted that he had so told the sheriff. It is contended by appellant that only one conversation relative to the matter occurred between appellant and the sheriff, and that appellant was in fact under arrest at the time he made the statement the admission of which was complained of. The bills of exception do not make it clear that there was only one conversation, and, it being left in doubt by them, the court’s qualification will control, and we must presume the ruling of the court in admitting the testimony was correct.

Appellant requested the court to instruct the jury to return a verdict of not guilty because there was no legal evidence in the record to show the market value of the alleged stolen property. This the court declined to do, and the same is brought forward as error. Mrs. Lyles testified that a second-hand grafanola had no market value in the town of Orange, where the theft is alleged to have occurred. The record is otherwise silent upon this point. She testified that she purchased the grafanola in April, 1919, and paid for it the sum of $120; that she had been offered for it the sum of $75. Objection was urged to her testimony as to wlíat she paid for it, and what she had been offered, as not being the way to prove market value. “Value” as it relates to stolen property is the market value of the same at the time and place of the taking, if it had a market value, and if not, the value would be the amount it would cost to replace it. Cunningham v. State (Tex. Cr. App.) 236 S. W. Rep. 89, and cases therein cited. The record showing it had no market value, the testimony of the witness as to what she had paid for the same and what she had been offered for it would be pertinent to enable the jury to determine its real value, or what it would cost to replace it. The question discussed is presented in bills of exception 4, 10, and 11, and show no error.

Bills of exception 3, 5, 6, 7, 8, 9, 13, and 16, as qualified and explained by the trial judge, present no error. Bill No. 20 consists of 33 questions and answers. We have frequently heretofore condemned bills In this form. See Carter v. State (Tex. Civ. App.) 234 S. W. 535; Jetty v. State (Tex. Cr. App.) 235 S. W. 589; Rylee v. State (Tex. Cr. App.) 236 S. W. 744; McDaniel v. State (Tex. Cr. App.) 237 S. W. 292; Watson v. State (Tex. Cr. App.) 237 S. W. 298; Cottrell v. State (Tex. Cr. App.) 237 S. W. 928.

On the night of the alleged theft Mrs. Lyles and her sister left their house about 7 o’clock to attend a circus. Upon returning they discovered the grafanola was missing. Mrs. Lyles made complaint to the officers, expressing her suspicions of appellant, and the officers visited his house that night, but failed to find the instrument there. She explains that her suspicions were aroused, towards appellant because as she and her sister were leaving the house she saw him and one John Miller in a car near there, Appellant was a service car driver, and Mrs. Lyles had frequently called upon him to. take her places in his car. She denied that any relations existed between them other than that as a chauffeur he was driving her for pay; that she used his car two or three times a week, telephoning him whenever she desired him to come to the house for her.. She denied that he had ever spent the night with her at any time. Her sister, who occupied a portion of the same house with Mrs. Lyles, did not support her in all respects with reference to her attitude towards appellant. Her sister testifies that they seemed to be on very friendly terms; that appellant was a frequent visitor at the house,.both day and night; that he would sometimes call at the house in his car, and . Mrs. Lyles would go out and talk to him, and at other times he would come in the house and stay there an hour or two visiting with her sister; that she did not know how long he would remain at night always, as sometimes her sister would be in her part of the house and witness in the other.

Appellant claimed and testified that he was on unusually friendly terms with Mrs. Lyles; was a frequent visitor at her house, and always had access to her room with her consent, both day and night; that on the day before the alleged theft she had asked him for $65; that he had told her he did not have the money, and she had requested him to try and get it from some one, and pawn the grafanola for the purpose; that on the night before the alleged theft he had taken Mrs. Lyles in his car to see a friend of his, one Dr. Scarbrough, and talked to the latter about advancing the money, Mrs. Lyles being present at the time; that Scarbrough’ did not at that time agree to let him have the money, but told him he would let him know the next day; that on the next day Scarbrough did tell him he would let him have $55 on the grafanola, and that appellant himself advanced $10 of his own money, and turned the $65 over to Mrs. Lyles. He said that Mrs. Lyles did not want her sister to known that she had mortgaged or pawned the grafanola, and had told him she would get her sister away from the house to the ’ show, and. for him to get the grafanola while they were away, which he did. Appellant proved by Dr. Scarbrough that appellant, together with a lady whom appellant introduced as Mrs: Lyles, did come to him and seek an advance of $65 on the grafanola; that witness did not know Mrs. Lyles, and would not have been able to recognize her, as it was dark, but that the next day appellant pointed out to him on the street Mrs. Lyles as the lady who was with him (appellant) the night before. It was proved by J. B. Childress (the father of appellant), with whom Dr. Scarbrough boarded at the time, that he had some $90 of Scarbrough’s money, and that at the request of Scarbrough he had turned over to appellant $55 thereof. Appellant also showed by two witnesses that some 30 days after the loan he paid back to Dr. Scarbrough the $55 which had been advanced by the latter. Appellant claims that, after having paid from his own funds the money back to Scarbrough, he had the grafanola moved to his (appellant’s) house, where it was subsequently found. Appellant admitted upon the witness stand that he had told a number of parties he knew nothing about the grafanola, or who had gotten it; that he did this because Mrs. Lyles had requested him to so report in order that her sister might not know what had become of the instrument.

Mrs. Lyles denied all of these matters asserted by appellant, and the evidence upon these issues is extremely contradictory. Appellant claims that he mortgaged the grafanola to Dr. Scarbrough at the request of both Mrs. Lyles and her husband. Mr. Lyles was not used as a witness upon the trial, and his absence is not accounted for, Appellant explains the reason he told the officers he had bought the grafanola from Posey was also at the suggestion of Mrs. Lyles herself; that Posey had been staying with her, and she had said if anything was said about it they would lay, it on Posey, because he was not giving her enough money and she had fallen out with him. This statement was also denied by Mrs. Lyles.

Upon this state of the record appellant qftered to prove by a witness by the name of Elam that he was acquainted with both appellant and Mrs. Lyles, and knew the relationship existing between them, and knew the same to be of an intimate sexual character. He also offered to prove by a hotel keeper that about the time of the alleged theft appellant and Mrs. Lyles had occupied a room at his hotel together, and had been ejected therefrom by him. This testimony was excluded by the court upon the theory that it was an attempt to impeach the witness Mrs. Lyles by showing her immoral character, and by specific acts of immoral conduct. If it was offered upon this issue alone there is no question but that the court would be correct in not admitting it. Appellant, however, sought to introduce it, not for the purpose of impeaching Mrs. Lyles, but insisted that the jury had a right to know what the actual relations existing between the two were, upon the theory that, if such intimate relations did exist, it would tend to support appellant’s story that he had not stolen the grafanola, as was claimed by Mrs. Lyles, but had in good faith and at her instance taken the grafanola from her house and pawned it in order to raise money for her benefit. If the theory of appellant be accepted as true, the conduct of Mrs. Lyles in reporting the loss of the grafanola to the officers would be consistent with the story told by appellant that she was seeking to conceal from her sister the fact that she had mortgaged it, and would also explain appellant’s conduct in denying knowledge of the disappearance of the grafanola from her house, and his statement about having purchased the same from Posey. If it would tend to support his statement that he was attempting throughout the transaction to protect her and conceal from her sister the facts incident to the disappearance of the instrument it should be admitted. We are inclined to believe that, in view of the issues raised by appellant and his witnesses, the court was in error in excluding from the jury any evidence which would have shown intimate relations existing between appellant and Mrs. Lyles. Proof that the relation existing between them was criminally intimate would, of course, not be admissible if she simply occupied the relation of an ordinary witness, because her veracity could not be questioned or impeached by any such proof; but such is,not the condition. Appellant’s contention is that it was by reason of these very intimate'rela-ions that she had appealed to him for money, and had suggested the manner of securing it, and how the grafanola should be removed in the absence of herself and sister. To our minds it appears to throw light upon the whole transaction. The rejected testimony should have been admitted. Eppison v. State, 82 Tex. Cr. R. 364, 198 S. W. 948. The jury may or may not have believed the evidence tendered by appellant upon the issue in question, but the testimony throughout upon the material issues is so contradictory we believe the jury was entitled to receive, and weigh, this testimony f in connection with all the other facts in evidence.

Appellant had in no way put his reputation in issue. Upon cross-examination of the witness Elam the district attorney propounded this question:

“Do you know defendant’s reputation here, as to whether he is a law-abiding citizen, or otherwise?”

Appellant objected to the question, and same was sustained by the court. Counsel for appellant requested the court, in the presence of the jury, to instruct the jury to disregard the question, and further to instruct them that the question was improper; but' this the court refused to do. The learned trial judge qualifies the bill by stating that appellant did not submit any special charge to the court instructing the jury to disregard the question. It is our opinion that the question was such a gross violation of all rules of procedure that it should not be necessary for appellant to request the court to instruct the jury that it was improper, and to disregard the same. The court should have done so of his own motion, and should have promptly reprimanded the district attorney for asking such a question. There is no better known rule than that the reputátion of the defendant cannot be inquired into by the state unless the accused himself opens up the way, and for the district attorney to propound such a question, thereby forcing the accused in the presence of the jury to interpose an objection, called for prompt action on the part of the court. As long as the law presumes an accused to be innocent, attorneys for the state ought not inject into the trial a matter which every well-informed lawyer knows is improper. Common justice to a party accused of crime suggests that he should be treated fairly upon his trial, and such proceedings as were here resorted to will not be tolerated or approved. Ordinarily when the court promptly sustains an objection to a question, and the facts indicate that it was asked in good faith, no error is presented unless the question is of such nature as to be extremely hurtful. Overstreet v. State, 68 Tex. Cr. E. 238, 150 S. W. 899, and cases therein cited. We fi&ttently decline to reverse cases where impmmLquestions were asked and objections weflifpromptly sustained; but we can scarcely conceive a question which in and of itself could be more hurtful to an accused than one calling for an answer which would put in issue his general reputation. It places him in the unfortunate attitude of having to let the question pass unchallenged, thereby permitting the state to do' what it plainly has no right to do, or of objecting thereto in the presence of the jury, leaving the very natural impression upon them that he feared an answer which would have been detrimental to him.

The motion for rehearing is granted; the judgment of affirmance hefetofore rendered will be set aside, and the judgment of the trial court will be reversed, and the cause remanded. 
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      
      =>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     