
    CARUTH v. STATE.
    (No. 3594.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    1. Criminal Law <&wkey;658—Conduct of Trial—Remarks and Conduct oe Judge-Comments on Evidence.
    A witness, in a prosecution for keeping a gaming house, testified, on questions by the court, that he had spent much of his time on the premises, but had seen no gambling, whereupon the court ordered Ms arrest until a perjury indictment could be filed against him. He was immediately taken by the sheriff, led from the witness stand in the presence of the jury, and carried to jail. Defendant had pleaded not guilty to the gambling charge and had also moved for a suspended sentence. The statutes provide that the jury are the exclusive judges of the facts and the credibility and weight of the evidence and that the court shall rule without expressing his conclusion or belief as to the testimony. Held, that the court’s action in arresting the witness constituted an expression on the weight of his testimony in open court. '
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1534%; Dee. Dig. <5&wkey;658.]
    2. Criminal Law <&wkey;273 — Arraignment and Plea—Right to Plead.
    One accused of crime alone can plead guilty, and his attorneys cannot do it for him.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634; Dec. Dig. &wkey;273.]
    3. Criminal Law &wkey;>982—Suspension oe Sentence—Evidence oe Reputation.
    In a prosecution for running a gambling house, evidence that defendant after his arrest was again seen at such house was inadmissible on a plea of suspended sentence; other transactions than that with which defendant stands charged being material only as to his reputation or standing.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;> 982.]
    4. Criminal Law <&wkey;376—Evidence—Char-acter oe Accused.
    Where one is on trial in a. criminal case, his character prior to the commission of the offense may be inquired into, but not the character he may have acquired after the commission thereof or what is said about his character after such time.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. &wkey;376.]
    Appeal from District Court, Wichita County; J. W. Akin, Judge.
    Bob Caruth was convicted of keeping a gaming house, and lie appeals.
    Reversed and remanded.
    T. R. Boone, oí Wichita Balls, for appellant. O. 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged with keeping a gaming house, or permitting gaming in a house under his control.

The evidence shows it was a negro social club. Some of the evidence shows that gaming was carried on in the house such as exhibiting a monte bank, playing craps, or shooting dice. The state put a witness on the stand, who was a member of the club. He denied that gaming was carried on at the club rooms. A bill of exceptions recites that, after the witness had so testified, the court took him in hand and examined him. This witness was a member of the oragnization, and was at the club much of his time, but saw no gambling. Upon cross-examination he testified to the same effect, whereupon the court took the witness in hand, when the following occurred:

“The Court: Q. Do you say that there was no gambling with dice going on in that pool room? A. None that I saw. Q. Were you there? A. Most of the time. Q. Were there any monte games going on on these small tables? A. I never seen anything of the kind. Q. Was there any going on there? A. None that I seen. Q. Would you have seen it if there had been? A. Xes, sir.”

When the witness answered the court, as above stated, the court wheeled around in his chair, and immediately said to the sheriff:

“Mr. Sheriff, take this witness and look him up in jail until a perjury indictment can be filed against him.”

The sheriff took charge of the witness, and led him off the witness stand and out of the courtroom. Said acts all took place in the presence of the jury. Various and sundry exceptions were taken to this action of the court, which we deem unnecessary to repeat. The court filed a bill substantially as above stated, and added the qualification that:

“At no time during the trial of the case was the guilt of the defendant contested, the defendant’s object being purely to obtain a suspended sentence, and defendant’s counsel stated to the jury that they should return a verdict of guilty, but recommended a suspension of the sentence, so that the act of the court could not have been prejudicial to the rights of defendant.”

Appellant declined to accept this bill of exceptions as qualified and prepared one approved by bystanders, which is properly verified and in the record. This bill made by bystanders was not in any way contested. These bystanders verify the statement that this all occurred in the presence of the jury and as stated in the bill of exceptions reserved and prepared by appellant. Appellant entered a plea of not guilty and was contesting the state’s case, and also filed a suspended sentence motion. The court in his written charge instructed the jury to disregard the remarks he had made. The court does not qualify in any manner whatever the statement that these matters occurred, as stated by appellant, in his bill of exceptions. The qualification was in the nature of minimizing the error by stating that appellant’s attorney was not contesting his guilt, but was making a plea for suspended sentence.

Appellant had pleaded not guilty. He had not entered a plea of guilty. This he alone could do. His attorneys could not do this for him. Not only so, but the statute requires if he pleads guilty he must be warned of the consequences of his act, and, not only so, but testimony must be introduced in order that the jury might arrive at a correct conclusion even under the plea of guilty. The witness who was sent to jail to await an indictment for perjury at the suggestion 'of the court was testifying to facts that showed appellant innocent. Some of the state’s witnesses had sworn to circumstances and facts which would sustain the indictment. This witness controverted those facts, and if his testimony was true, or believed by the jury to be true, appellant would not have been guilty. In other words, if the jury believed this witness’ testimony, they would have returned a verdict of not guilty. The statute provides the jury are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. Another statute provides that the court shall rule without expressing his conclusion or belief about the testimony. These two statutes are in conformity with and aid each other. One confers exclusive right upon the jury to weigh the testimony and pass on the credibility of the witnesses, ahd the other prevents the judge from so doing. When this witness testified that no gambling had been carried on, the court immediately ordered him to jail, had him taken from the witness stand, before the jury, and carried to jail, with the command to hold him until he could be charged with perjury. If this is not an expression on the weight of the testimony of this witness in open court, it would be difficult to conceive what would be such expression on the part of the court. The jury failed not only to acquit the defendant, but ignored his plea for a suspended sentence. Appellant had never been previously convicted of any offense; he had been a hardworking industrious negro, and, so far as the record is concerned, he was a negro of good character and standing. The authorities are very numerous condemning the conduct of the court. Some of the cases will be cited: Taylor v. State, 33 Tex. Cr. R. 241, particularly page 244, 42 S. W. 384; Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477; McMahan v. State, 61 Tex. Cr. R. 489, see particularly page 495, 135 S. W. 558; Zysman v. State, 42 Tex. Cr. R. 432, 60 S. W. 669; Deary v. State, 62 Tex. Cr. R. 352, 137 S. W. 699; Scott v. State, 72 Tex. Cr. R. 26, 160 S. W. 960. In the latter case quite a number of authorities are cited. Simmons v. State, 55 Tex. Cr. R. 441, 117 S. W 141. For collation of authorities, see McMahan v. State, 61 Tex. Cr. R. at page 495, 135 S. W. 558.

Another hill of exceptions recites that appellant was arrested for carrying on a gambling house; or being interested in it, and was in jail for a week or such matter. Shortly after getting out of jail, he was found in this club again, and the witness, a deputy sheriff, testified that he saw no gambling, but things were going on in this club hall about the same way, and that he found somewhere about the house gambling paraphernalia. Appellant was not shown to be gambling at the time, nor was any gambling shown to have been going on. Objection was urged to this testimony for various reasons, which we think should have been sustained. This was admitted, it seems, from the court’s idea, as bearing upon his suspended sentence plea. He was not shown to be engaged at the time in any violation of the law, or that any violation of the law was going on in the clubhouse. As we understand, the reputation or standing of an accused who requests suspended sentence at the hands of the jury is affected only by other transactions than that with which he stands charged. This whole matter about which this investigation was made and about which this testimony was introduced was the same club. The matter occurred subsequent to the time of his arrest. Such testimony, even if it was an independent matter, and not connected with the original transaction, would hardly be such as the law contemplated, unless there was something derogatory to his standing as a citizen from the viewpoint of criminality. It would hardly be regarded as reflecting upon him because of the mere fact that he belonged to a club in which intoxicants were dispensed to its members in their own room. The evidence would have to go further and show, even if it was an independent transaction, that he was violating some law or doing something that reflected upon his character and standing which would authorize or justify the jury in finding against Mm on his suspended sentence plea, or that the house had been used as a gambling house since appellant’s arrest.

It has been held in Fossett v. State, 41 Tex. Cr. R. 400, 55 S. W. 498, that, where the defendant is on trial, it is his character prior to the commission of the offense that may be inquired into, and not the character he may have acquired after the commission of the alleged offense, or what' was said about his character after that time. This is the rule with reference to general reputation and character of an accused. 1-Iis reputation or standing growing out of the transaction under which he was indicted could not be used to impeach his character or standing except on the facts themselves incident to the alleged crime as they might appear in his case. The incident of the alleged crime itself might be possibly of such a nature as would justify the jury in finding against him on his plea for suspended sentence. But that is involved in the transaction itself. A man cannot be tried for matters occurring after indictment; he must be tried on the charge in the indictment, which as a matter of law and fact must occur before the indictment is returned.

The judgment is reversed, and the cause is remanded. 
      @^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     