
    ALLEN v. STATE.
    (No. 9067.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1925.)
    1. Homicide &wkey;169(1) — Testimony as to defendant’s difficulty with wife concerning another woman held improperly admitted.
    Testimony on behalf of state that defendant had a difficulty with his wife concerning an-, other woman held improperly admitted, as in no way entering into killing of deceased, claimed by state to be unprovoked and by defendant to be in self-defense and as result of illicit familiarity between deceased and defendant’s wife.
    2. Criminal law &wkey;>338(7) — Testimony that defendant permitted lewd women to stay at his rooming house held improperly admitted.
    In prosecution for murder, testimony on behalf of state that defendant permitted lewd women to stay at his rooming house was improperly admitted, having no connection with ease, and serving merely to bring defendant in disrepute before jury.
    3. Criminal law <@=>338(7) — Testimony as to family left surviving him by deceased should be excluded.
    Testimony as to family left surviving him by deceased should be excluded, having no per-tinency to case, and intended merely to excite sympathy and prejudice of jury.
    Commissioners’ Decision.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    John Allen was convicted of murder, and he appeals.
    Reversed and remanded.
    Simpson, Lasseter & Simpson, of Tyler, John A. Cook, of Mt. Pleasant, and J. H. Beavers, of Winnsboro, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is murder, and the punishment is 15 years in the penitentiary.

¿-The state’s case showed an unprovoked homicide, while the defendant claimed that the killing grew out of illicit familiarity between the deceased and his wife, and that the killing was actually done in self-defense. These questions were very sharply presented by the evidence, and, without doing violence to the facts, the jury might have adopted either theory presented.

With the record in this condition, the state was permitted to prove, over the objection of the defendant, by a witness who had roomed at defendant’s house when he and his wife were living together, that some two or three weeks before the homicide he saw the defendant and a blond-haired woman who was rooming at the house come in the house, the woman at the front door and the defendant at the back door, and that defendant’s wife met the woman at the front door and said to her, “You all went off together; why didn’t you come back together?” The same witness was also permitted to testify that appellant and his wife had some words and controversy at the time about his association with this woman.

The state was also permitted to prove, over the appellant’s objection, that the appellant permitted lewd women to stay at his rooming house, when, as appellant contends, there was no evidence that showed that there was any controversy, unpleasantness, or estrangement that ever existed between the deceased and the defendant on the account of any women rooming • at his rooming house, and the further objection was made that it was an attempt on the part of the state to prove a separate, independent, and extraneous crime than that with which the defendant was charged.

,We think the objections to both lines of testimony should have been sustained. It • was, certainly not permissible to show that the appellant had had a difficulty with his wife concerning another woman, unless these matters in some way could have entered into the killing of' the deceased, and we think it is clear from this record that they did not and could hot have done so. Lovett v. State, 87 Tex. Cr. R. 550, 223 S. W. 211. As was stated in that case:

“Appellant may have been derelict in his duty to his wife, and may have been intimate with other women, but that could not affect, or be used to affect, this .case against him.”

In the Lovett Case, supra, the court sustained an objection to this character of testimony, but this court, speaking through Judge Davidson, held that nevertheless the very asking of the question was error.

In the instant case, the testimony was admitted over the appellant’s objection. As to that part of the testimony objected to with reference to appellant allowing lewd women to room at his rooming house, we think it clear that it has no connection directly or indirectly with the instant case, and its admission could serve and did serve no purpose except to prejudice the jury against him. It was an extraneous matter, that merely tended to bring him in disrepute before his triers. Bryant v. State, 99 Tex. Cr. R. 600, 271 S. W. 612; Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679; McIntosh v. State, 85 Tex. Cr. R. 417, 213 S. W. 659.

[3]By bill of exceptions No. 9, complaint is made at the action of the court in permitting the state to prove by the wife of the deceased that he left surviving him five children, two boys and three girls, the ages of whom ranged from 6 to 16 years. The objection to this testimony was that it was irrelevant and immaterial, and calculated to arouse the sympathy of the jury for the surviving wife and children of the deceased, and to prejudice them against the defendant. It is not necessary in this case to decide as to whether this matter constituted reversible error. It is sufficient to say that the question of the admissibility of this character of evidence has been decided by this court in the case of Faulkner v. State, 43 Tex. Cr. R. 311, 65 S. W. 1097. In discussing this character of testimony in that case, Judge Henderson said:

“No pertinency whatever is shown as to this matter, and it was simply intended to excite the sympathy and prejudice of the jury.”

In view of another trial, we hold that this testimony should be excluded.

There are many other complaints contained in the record, but, as they may not occur in the same form on another trial of the case, a discussion of them is pretermitted.

The judgment of the trial court will be reversed, and the cause remanded.

BER 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. 
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