
    HOLLAND v. STATE.
    (No. 4102.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.
    On Motion for Rehearing, June 21, 1916.
    Dissenting Opinion July 3, 1916.)
    1. Oeiminal Law <§=3982 — Suspension oe Sentence — Burden oe Prooe oe Prisoner’s Reputation.
    Under Vernon’s Ann. Code Or. Proc. 1916, arts. 865b, 865e, providing that in no case shall sentence be suspended except when the proof shall show and the jury shall find that the defendant has never before been convicted of a felony, the burden of proving that accused has never been convicted of a felony is upon accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;> 982.]
    2. Criminal Law <&wkey;982 — Suspended Sen-’ tence — Evidence.
    When accused properly pleads for suspended sentence, the state may introduce testimony as to the general bad reputation of accused, and also prove specific instances of crimes, even minor misdemeanors and the general conduct, habits, etc., of accused, so that the jury, from all the testimony, even if accused has never before been convicted of a felony, can determine whether or not in their discretion they will recommend a suspension of sentence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;> 982.]
    3. Criminal Law <&wkey;982 — Suspended Sentence-Evidence.
    Upon application for suspended sentence, purely hearsay testimony, as distinguished from general reputation or specific acts of accused within the knowledge of the witness, is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <§=> 982.]
    4. Criminal Law <&wkey;982 — Suspended Sentence-Evidence.
    The court should be liberal in allowing testimony by the state upon question of accused's reputation, habits, and commission of previous felony, and such proof may be introduced at the time of proving the offense itself.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. c&wkey; 982.]
    5. Criminal Law &wkey;>982 — Suspended Sentence-Evidence.
    Upon application by accused for suspended sentence if when the state offers proof of his habits, reputation, etc., he withdraws his application, the court should permit no such proof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. &wkey; 982.]
    6. Criminal Law <&wkey;982 — Suspended Sentence-Evidence.
    Under Vernon’s Ann. Code Cr. Proc. 1916, arts. 805b, 865c, upon application for suspended sentence, where accused fails to prove that he has never been convicted of a felony, the jury may not pass on the question of recommending a suspended sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <S&wkey; 982.]
    On Motion for Rehearing.
    7. Criminal Law <&wkey;1169(l) — Appeal and Error — Hearsay Testimony.
    , On application for suspended sentence in burglary trial, where evidence of guilt was clear and accused offered no testimony as to good reputation or not having been convicted of felony, and the jury assessed the lowest punishment, the admission of hearsay testimony as to accused’s photograph being in a rogues’ gallery was harmless error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. <&wkey;>1169(l).]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Herschall Holland was convicted of burglary, and appeals.
    Affirmed.
    H. Reed Williams, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, and assessed the lowest punishment. The evidence was amply sufficient to sustain the verdict. We see no necessity of reciting it.

Appellant, on the eve of the trial, filed his sworn plea, seeking a suspension of his sentence in case he was convicted. When this is the case, the statute enacts (article 865c, Vernon’s C. C. P.) that:

“The court shall permit testimony * * * as to the general reputation of defendant to enable the jury to determine whether to recommend a suspension of sentence, and as to whether the defendant has ever before been convicted of a felony.”

The statute also enacts (article 865b):

“That in no case shall sentence be suspended except when the proof shall show, and the jury shall find in their verdict that the defendant has never before been convicted of a felony i'n this state or any other state.”

We have repeatedly construed these statutes in our previous decisions. It is unnecessary to collate them here. In the particular méntioned, we think the statute means what it says and says what it means; that is, that it is incumbent upon an accused himself when he pleads for a suspended sentence to prove that he has never before been convicted of a felony in this or any other state. Under the statute, no presumption is indulged in his favor that he has not so committed a felony. He must prove it. If there is no proof of this fact, then the court should not submit the issue of suspended sentence to the jury for a finding at all, and that was the case in this instance.

Whenever an accused pleads for a suspended sentence by proper sworn plea in time, the statute is clear when it says that the court shall permit testimony as to the general reputation of the accused, to enable the jury to determine whether or not to recommend a suspension of the sentence. We think this is clear, and means what it says. And, taking the whole statute and the object and purpose of it, we have held, and still hold, that not only can the state introduce testimony as to the general bad reputation of an accused, but can also prove specific instances of crimes, even minor misdemeanors and the general conduct, habits, etc., of an accused, so that the jury, from all the testimony, even if he has never before been convicted of a felony, can determine whether or not in their discretion they will recommend a suspension of his sentence. The court should not permit purely hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying.

Practically in all records coming before this court where an accused has pleaded for a suspended sentence, such plea, as in this instance, is filed on the very eve of the trial. The state cannot, and does not, know that the accused will file such plea, and is therefore frequently ill prepared, if prepared at all, to offer proof on such plea to disprove it. Hence it is more necessary, in order to reach the real intent of the law, that the court shall be liberal to the state in admitting testimony on this issue. The state is not bound to wait until after an accused himself offers proof that he has committed no felony and of his good reputation, habits, etc., but may introduce such proof at the time of proving the offense itself. However, of course, if when the state offers such proof the accused should then withdraw his plea for a suspended sentence, the court should permit no proof on the subject.

Appellant has some bills of exceptions to the introduction by the state - of some testimony along this line. They are qualified in a very lengthy statement by the trial judge. We think it unnecessary to recite this here, and we think it unnecessary to discuss the said suspended sentence law in a general way other than we have done, but think it necessary only to discuss it to the extent to decide the questions raised herein. We think the testimony in this case, without contradiction, affirmatively shows that appellant’s general reputation as a peaceable and law-abiding man, and in some particulars also, was bad, and he offered no proof to show that he had never before been convicted of a felony. Hence it was proper, as the court did, to refuse to submit that issue to the jury for a finding. Even if the court on that issue admitted pure hearsay testimony, it became harmless, in the light of all the testimony and the fact that the jury assessed the lowest punishment.

The court correctly answered the inquiry of the jury when he told them that, under the circumstances, they had no right to pass on the question of recommending a suspended sentence.

There is no reversible error shown by this record.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant again urges that it was reversible error for the court to permit the question and answer by the state of the witness Harry Kendall, as follows:

“Q. I will ask you if you don’t know it to be a fact that his mug appears in the detectives’' office up here, whore they mug desperate characters, and that his mug is in other places that you know of? A. I heard Mr. Do Witt say in 'there awhile ago that he was mugged, but I could not say that I know he was mugged”

—claiming that this was hearsay.

We considered this question fully at the time the opinion was prepared and handed down, and held the court should not permit hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying, and, further, that even if the court on the issue of suspended sentence admitted pure hearsay testimony, it became harmless, in the light of all the testimony and the fact tnat the jury assessed the lowest punishment. All of appellant’s bills are along the same line. We then thought it unnecessary to take up this particular question and discuss it alone, as it was embraced within the discussion of all of them together. Neither did we then make any statement of the testimony. We will now do so.

Appellant pleaded for a suspended sentence. He neither testified himself, nor offered any witness or other testimony in his behalf. This testimony objected to, as the record clearly shows, was offered solely to let the jury determine whether or not it would suspend his sentence. It was not offered nor admitted for any other purpose.

The uncontradicted testimony by the state showed that “just prior, two or three days before,” February 5, 1916, Sammy Williams called the witness Harry Kendall into Graves’ tailoring shop in Dallas, and Kendall swore:

“At that time I had a conversation with Hershall Holland and Sammy Williams, * * * and Sammy Williams said that they were going to ‘make’ the Crowdus Drug Company, and that he would have some dope on hand, and asked me if I could dispose of it in any way. * * * I told them this: That if they made the joint, it could be very easily disposed of, and that they could get a good price for it.”

Mr. Mitchell, the manager of the Crowdus Drug Company, swore: That the drug company’s house was burglarized on the night of February 5, 1916. The store building was five stories and a basement. That the entry was made up the fire escape and by raising a window. They broke an iron bar, and the window was locked on the inside with a padlock. This padlock they also prized open. That the narcotics of the company were kept on the third floor, in a room partitioned off and locked to itself. That they used the same instrument that they entered the building with to open that padlock to the room where they kept these narcotics. That in addition to opening the window, they had to break two locks, that on the inside of the window and the door to where those nar-coties were kept, so as to reach them. That they stole 130 bottles of morphine, 16% ounces, worth at wholesale $7.60 an ounce, and 11 bottles of cocaine, containing a half ounce each, and 1 bottle containing 1 ounce, all together worth $156 at wholesale. That the drug company recovered 93 bottles only of the stolen morphine and none of the cocaine.

Lane Wilson testified: That a little after midnight on the night of February 5, 1916, Sammy Williams phoned him and procured from him his automobile. That that night about 1:30 said Williams and appellant together came to his house in said ear. That he went out to where they were, and found them with over a hundred bottles of morphine — he counted over a hundred. He got in the car with them, and they went down to his room in his mother’s house and carried the stuff into his room. He swore:

“I bought 50 bottles from Horshall Holland and paid him $125 for it. I paid that money to I-Tershall Holland.”

He further swore that the three then went to Harry Kendall’s residence. Harry Kendall and his wife swore that they came there that night together. Kendall swore that on that occasion Hershall Holland or Sammy Williams—

“one or the other, while they were both present there said, ‘We made the Crowdus Drug Company; that we climbed up the fire escape and jimmied the lock.’ ”

That they left 4 bottles of the morphine there with him, intended as a gift to him. They tried to get him to go with them to Et. Worth to sell the “dope,” but he advised against this. It seems that Lane Wilson was arrested for having said part of said morphine in his possession. While in jail, he told Burford Jetty to get this “dope” and take it away from his house, which J^tty did. The officers caught onto this, and recovered that much of the morphine from Jetty, which was identified as stolen from the drug company and returned to it.

From this uncontradicted testimony, no one can doubt the guilt of appellant. It establishes his guilt beyond a doubt. With this clear guilt of appellant established, the state sought to prevent the jury from suspending his sentence, and on the question of suspended sentence solely introduced the testimony above objected to. The state sought to prove by said witness Harry Kendall that appellant’s general reputation was bad as a peaceable, law-abiding citizen and honest man, hut he said he could not say whether his reputation was good or bad, “but he had got a pretty rough name to be a kind of fighter, and that is all”; that he could not say he is an honest man, hut he was honest with his fellow citizens — with the boys that he dealt with. On recross-examination by the appellant, he swore:

“He has got a bad reputation for fighting; he gets drunk and shoots and things like that.”

Mr. De Witt, the detective, swore he knew appellant’s general reputation for being a peaceable, honest, law-abiding citizen, and that it was bad. This, together with the objected to testimony, was all the testimony on this subject.

The admission, over appellant’s objection, of what the witness swore Mr. De Witt had told him, was error, but, as shown, the witness as a part of his answer expressly stated, “But I could not say that I know he was mugged.” As stated, the jury assessed the lowest punishment, and we think that the admission of this testimony, under the circumstances of this case, does not present reversible error. Judge Hurt, in Post v. State, 10 Tex. App. 594, said:

“If this court must reverse for every irregularity, though objected to, whether it tended to injure defendant or not, it would be almost impossible in a great many cases to legally convict. The action of the court in this matter was wrong, but, no injury appearing therefrom, we cannot make it a ground for reversal.”

To the same effect is Bond v. State, 20 Tex. App. 438; Saddler v. State, 20 Tex. App. 196; King v. State, 42 Tex. Cr. R. 109, 57 S. W. 840, 96 Am. St. Rep. 792; Tinsley v. State, 52 Tex. Cr. R. 95, 106 S. W. 347. A great many other cases to the same effect could be collated, but we think it unnecessary.

The motion is overruled.

DAVIDSON, J.

(dissenting). When the original opinion was announced, I did not theff enter my dissent. When the court overruled the motion for rehearing, I noted my disagreement. I cannot agree with some statements and conclusions found in the opinion of the majority, so I shall follow the record in such quotations as I think necessary.

Bill of exceptions No. 1, as contained in the record, is as follows:

“Be it remembered that upon the trial of the above entitled and numbered cause, while Henry Kendall, a witness for the state, was in the witness stand in behalf of the state, the state introduced the following testimony, to wit: ‘Q. I will ask you if you don’t know it to be a fact that Ms mug (meaning defendant’s picture) appears in the detective’s office (meaning rogues’ gallery) up here, where they mug desperate characters, and that his mug is in other places that you know of? I want you to tell me whether or not you have heard that? A. I heard Mr. De Witt say in there awhile ago that he was mugged.”

This is the testimony to which many objections were urged. These objections were all overruled, and the testimony went before the jury. In the original opinion the majority of the court held that, inasmuch as appellant had filed his plea for suspended sentence :

“It is incumbent upon an accused himself, when he pleads for a suspended sentence, to prove that he had never before been convicted of a felony in this or any other state. Under the statute, no presumption is indulged in his favor that he had not so committed a felony. He must prove it. If there is no proof of this fact, then the court should not submit the' issue of suspended sentence to the jury for a finding at all, and that was the case in this instance. Whenever an accused pleads for a suspended sentence by proper sworn plea in time, the statute is clear when it says that the court shall permit testimony as to the general reputation, of the accused to enable the jury to determine whether or not to recommend a suspension of the sentence. We think this is clear and means what it says. And taking' the whole statute and the object and purposes of it, we have held, and still hold, that not only can the state introduce testimony as to the general bad reputation of an accused, but can also prove specific instances of crime, even minor misdemeanors and the general conduct, habits, etc., of an accused, so that the jury from all the testimony, even if he has never before been convicted of a felony, can determine whether or not in their discretion they will recommend a suspension of his sentence. The court should not permit purely hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying.”

This quotation lays down two propositions: First, that it is incumbent upon the defendant, when he files his plea for suspended sentence, to prove it. If he does not prove it, it is not an issue in the case, and the court should not submit the matter to the jury. Other decisions have so held. The second proposition is that purely hearsay testimony shall not be admitted on this issue, and yet this judgment is affirmed when the defendant introduces no testimony on his plea of suspended sentence. If the defendant does not file his plea for a suspension of the sentence, it cannot be an issue in the ease, and no testimony should be admitted bearing upon his reputation. Defendant alone can put his reputation at issue under the suspended sentence act. The state cannot do it. If he files his plea and offers no testimony, it is not an issue before the jury, because he does not tender any evidence on that question. Special matters to become issues in a case when authorized must be supported as to burden of proof by the party tendering such issues. Inasmuch as appellant did not offer any testimony in regard to this plea, the court was not authorized to submit the issue to the jury. This court, as well as the trial court, recognized that as the law, and the trial court refused to so charge the jury on the matter, and at their request expressly told them they could not consider it, and yet this hearsay testimony was permitted to go before the jury and remain before them. That it is purely hearsay is not the subject of debate. The witness Kendall, answering the question as to whether he had ever heard that appellant’s picture was in the rogues’ gallery, stated that he had heard Mr. De Witt say so awhile ago. It was not even attempted to be shown that his picture was in the rogues’ gallery, but this witness was permitted to state that he had heard Mr. De Witt say so. This is hearsay evidence of the veriest type. It could not be introduced either upon the plea of suspended sentence, if testimony had been offered in support of that plea, much less .could it be introduced in evidence to affect the defendant’s standing and reputation. I feel justified in making the statement that no opinion has been .written that would hold this character of testimony admissible otherwise than as the merest hearsay. In the opinion on rehearing the majority opinion does not fully copy the matter as set forth in bill of exceptions, but refers to the original opinion, in which it was held that the court should not permit purely hearsay testimony as contradistin-guished from general reputation or specific acts within the knowledge of the witness testifying, and, further, even if the court on the issue of suspended sentence admitted hearsay testimony, it became harmless in the light of all the testimony and the fact that the jury assessed the lowest punishment. The opinion on rehearing concedes the error, but puts the affirmance on the ground that it was harmless, especially so because appellant received the lowest punishment. Appellant was on trial for burglary, which is a serious felony in its nature and punishment under the Penal Code. To be convicted of this offense is a serious matter to the defendant, whether he be justly or unjustly convicted. If the conviction should be proper, under the facts and law it renders a man infamous, bars , him of all rights and privileges as a citizen of Texas; he cannot vote, testify, and do other things that the citizen unconvicted of a felony can do. It is necessarily of serious moment to him whether he be guilty or innocent. If he be innocent or if he be convicted when he should not be, there are other serious matters added to what has been stated where a just and legal conviction is obtained. He is made to suffer punishment in addition to the infamy engendered by reason of the conviction which he ought not to endure.

In Texas we have at least two leading propositions with reference to the trial of criminal cases: First, the legitimate facts must show guilt; second, only legitimate facts and legitimate methods shall be indulged to obtain the conviction. He may be guilty but if methods and means are resorted to, to obtain a conviction not authorized or justified by the law, the law has been prostituted beyond its purpose and beyond the authority invested in the court by legislative enactment. We do not legally convict men in Texas on illegitimate testimony or for offenses not denounced by the statute. All crimes in Texas are statutory. In fact, there can be no violation of law in Texas unless the Legislature has defined the offense before the man is tried or commits the act for which he is being tried. Recognizing this to some extent at least, the majority of this court in the instant case held that, inasmuch as appellant received the lowest punishment, therefore this illegal testimony was harmless error. As before stated, this testimony was not admissible on the plea of suspended sentence. The issue was not before the jury. Defendant offered no testimony, and the court expressly so instructed the jury, and this court in the majority opinion says the trial court was correct. Now we have the testimony set out in a bill of exceptions, or rather the statement of the witness recorded in the bill, which is purely hearsay, and the court says that the statement of the witness, although hearsay, was harmless. I do not understand how this statement of the majority opinion can be justified. The law presumes the defendant innocent until his guilt is established by legal testimony to the exclusion of the reasonable doubt. Here is a case where the guilt is not conceded. The defendant is fighting for his liberty. The burden is on the state to prove his guilt beyond a reasonable doubt to the exclusion of the presumption of innocence. The state is permitted to prove by the witness Kendall that a man named De Witt told him that defendant’s picture was in the rogues’ gallery, which, of course, means that he belongs to the confirmed criminal class. What becomes of the presumption of innocence? If the rogues’ gallery does not mean he is a confirmed criminal, then the writer does not understand what it does mean. When a picture of a man is placed in the rogues’ gallery, it publishes that he is a criminal. The fac-t that the picture was in the gallery was not even proved by the witness, but he stated that Mr. De Witt told him it was there. Now we have a case sharply presented that the defendant is not legally guilty. The law says he is presumed innocent until his guilt is established by legal testimony beyond a reasonable doubt. The state is permitted to introduce testimony of the witness Kendall that Mr. De Witt told him the defendant was such a confirmed criminal that they had placed his picture in the rogues’ gallery. If this is not damaging, the writer does not understand what sort of testimony or what sort of illegitimate evidence would be damaging, but the “antinomian cloak” of “harmless error” is thrown over the transaction, and the defendant, in the face of this record, must serve a term in the penitentiary. There may be cases of harmless error, but in a ease like this it ceases to be harmless error.

There are two rules the writer has always understood to be fundamental with reference to this question, and to which the doctrine of harmless error cannot apply: First, if the ruling of the court is error, or if the introduction of the evidence would probably lead to or assist the state in getting a conviction when the guilt was in doubt, or the jury may or could take the opposite view and acquit, then the error cannot be harmless. But for this ruling of the court the jury may have taken a different view and acquitted. It was a fact of damaging force and effect that the defendant’s picture was in the rogues’ gallery, and therefore a confirmed criminal, even, if it had been proved as a fact, which even then ought not to have been permitted, but where it is purely hearsay that somebody else said that they had his “mug” or picture in the rogues’ gallery, the error becomes doubly intensified. It may have turned the scale in the minds of the jury. The jury came before the court and asked with reference to an instruction as to the plea of suspended sentence, and the court declined to give it. This shows the bent of the jurors’ minds, and this identical testimony may have been the turning point in their minds. They wanted to give the defendant the benefit of the suspended sentence. The court informed them they should not consider it, but this testimony remained before that jury, and whatever else may be said about it, there is no escaping the statement and conclusion that the defendant’s guilt was declared by the verdict of the jury and affirmed by this court. 1-Ie is in the penitentiary, or soon will be upon the issuance of the mandate of this court. That he has been damaged is not to be questioned. Then I restate this, rule: That wherever the error is of such a nature as may have probably influenced the jury to a conviction, when it might not possibly have occurred, it is reversible error. This is not debatable, and ought not to be in Texas. The second rule is that where the testimony admitted may have led the jury to assess a higher punishment than the minimum, then it is reversible error.

There is another view that might be presented in this particular case. The testimony upon which the state relied was practically all from accomplices. The jury, of' course, was instructed under those circumstances that if there is any evidence in the record tending to connect the defendant with the offense committed, it would be sufficient to- justify the jury in a verdict of guilt, provided they believed the testimony of the accomplices. The jury does not understand or appreciate as a rule close questions of that sort; they take a broader view, and do not generally understand what fact tends to connect the defendant with the offense about which the accomplice testified. This is so well recognized by the courts and bar that I do not care to discuss it. Then where a matter of this sort comes, and hearsay evidence of the fact that a man is such a notorious criminal that they have placed his picture in the rogues’ gallery at different places, or even as in the place testified by Kendall, it may have been taken by the jury as such evidence of his guilt that he was connected with the offense of burglary charged in the indictment.

Much might be written along these lines, but I have written as above because I believe this conviction was unjustly and illegally obtained; that defendant has not had a fair trial accorded him by the law of the land. For these reasons I respectfully enter my dissent. 
      <§=oRor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     