
    KITCHENS v. STATE.
    (No. 11932.)
    Court of Criminal Appeals of Texas.
    Nov. 14, 1928.
    
      Dial & Brim, of Sulphur Springs, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for one year.

Operating under such a warrant, officers searched appellant’s car and found therein four pints of whisky. Appellant testified that he did not know the whisky was in the car; that the car had been driven by another person a short time' before the officers searched it; that, when he (appellant) drove his car to town, it had no whisky in it. Other witnesses, who claimed to have been in a position to know, testified that the car had no whisky in it at the time appellant drove it to town.

Bill of exception No. 7 discloses that appellant placed in issue his general reputation for being a peaceable and law-abiding citizen. Dr. J. D. Wright, H. M. Dowdy, and J. B. McKee testified that they lived in the community where appellant was raised; that they knew his reputation in the Community in the respect mentioned; and that it was good. Over appellant’s objection, the state elicited from said witnesses that they had heard that appellant “was monkeying with whisky.” It is recited in the bill that appellant showed on indirect examination of the witnesses that they had heard the talk and rumor with reference to appellant’s connection with whisky after the date the indictment upon which he was being tried had been returned. Appellant requested the court to instruct the jury not to consider the answers of the witnesses elicited by the state. The court qualifies the bill of exception by quoting from the testimony of H. M. Dowdy and J. B. Wright. H. M. Dowdy testified on cross-examination by the state that “I have heard it talked down there in the last year or so that Tom Kitchens is in the whisky business, handling whisky.” On redirect examination by appellant the witness testified;

“Yes, I have heard it talked since this trial came up. I don’t believe I have heard it talked or rumored only since this case was preferred against him. I have heard right smart talk about it.”

Dr. Wright testified on cross-examination by the state:

“Yes I have heard it rumored that Tom Kitchens handled some whisky, I have not heard it directly. I mean by ‘rumored’ that it would be talked around by the people. I have heard that just the last eight months, maybe not so long. No, it has not been as long as ten months or a year.”

On redirect examination by appellant the witness stated that he. had heard most of the rumors since the prosecution had been instituted. On cross-examination by the state the witness McKee said:

“At the time I heard of his arrest I don’t remember that it came to my mind that I had heard it before; there has been a little talk down in the community there since be was arrested, I don’t remember anything previous. The talk that I have heard has just been surmise, didn’t seem to know anything, just a suspicion; after he was arrested some expressed themselves that they suspieioned it. I* have heard some rumors like that; it is a suspicion.”

The issue of guilt was closely contested. Appellant denied any connection with the whisky found in his car. Several witnesses gave testimony tending to corroborate his statement. The witnesses named in the bill of exception hereinbefore referred to testified that appellant bore a good reputation for being peaceable and law-abiding. In attempting to test the sincerity of said witnesses, the state made inquiry touching rumors and talk of acts of appellant inconsistent with the character the witnesses were called to prove, which rumors and talk, as we understand the record, had been heard by the .witnesses after the prosecution had been instituted.

It is the rule that a witness to the good character of the accused may be asked upon cross-examination whether he had heard rumors of particular charges or acts of the accused inconsistent with the character the witness is called to prove, not to establish the truth of such charges, but to test the credibility of the witness and enable the jury to weigh his evidence. Townsley v. State, 103 Tex. Cr. R. 508, 281 S. W. 1054.

An exception to the rule stated is that the inquiry, touching the past conduct of the accused, of which the witness has heard, must be confined to happenings antecedent to the commission of the offense for which the accused is on trial. Woodward v. State, 105 Tex. Cr. R. 556, 289 S. W. 407. We quote from Hopperwood v. State, 39 Tex. Cr. R. 15, 44 S. W. 841, as follows:

“Where a 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 had after the commission of the alleged offense, or what was said about his character after that time.”

Applying the rule announced in the decisions to the question under consideration here, we are constrained to hold that the learned trial judge fell into error in declining to instruct the jury not to consider the statements elicited from the witnesses on their cross-examination by the state.

It is disclosed by bill of exception No. 8 that a witness for the state testified that appellant’s general .reputation for being peaceable and law-abiding was bad; that the witness’ opinion was based solely upon discussions heard after appellant had been arrested for the offense, for which he was on trial. The witness was not qualified to express the opinion that appellant’s reputation in the respect mentioned was bad. As stated in Hopperwood v. State, supra, where the matter is an issue, it is the character of the accused 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 offense, or what was said about his character after that time. Hopperwood v. State, supra; Fossett v. State, 41 Tex. Cr. R. 400, 55 S. W. 498; Caruth v. State, 77 Tex. Cr. R. 150, 177 S. W. 973.

The questions touching defects in the affidavit for the search warrant cannot be reviewed. The affidavit does not appear in the record. We may add that appellant, having taken the stand and testified to the same criminative facts detailed by the officers, cannot now claim to have been injured by the testimony of the officers, even if such testimony might have been improperly admitted. Frey v. State (Tex. Cr. App.) 3 S. W. (2d) 459.

The search warrant was introduced in evidence before the jury. Appellant seems to make the point in his brief that he objected to the reception in evidence of said instrument. There seems to have been no issue upon which the contents of the affidavit and search warrant were relevant, and the warrant was improperly received in evidence before the jury. Dillon v. State, 108 Tex. Cr. R. 642, 2 S.W.(2d) 251. We say this in view of another trial. Appellant, not having interposed an objection to the reception of said instrument in evidence is in no position to complain.

For the errors discussed, the judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court  