
    WAGLEY v. STATE.
    (No. 5857.)
    (Court of Criminal Appeals of Texas.
    June 23, 1920.
    Rehearing Denied Oct. 20, 1920.)
    1. Criminal law <§=>675 — Court’s refusal to hear further testimony as to defendant’s reputation held not error.
    In a homicide prosecution, where six or seven acquaintances of defendant testified, and where the state in open court without limitation had admitted that defendant’s reputation for peaceableness and veracity was good, court’s refusal to hear further testimony as to defendant’s reputation was not error, even thopgh defendant had sought the benefit of the suspended sentence law.
    2. Criminal law <§=>982 — Inquiry as to reputation of defendant, who seeks benefit of suspended sentence law, should relate to time of trial.
    Where defendant in homicide prosecution sought the benefit of the suspended sentence law, the inquiry as to defendant’s reputation should relate to the time of the trial.
    3. Criminal law <§=>982 — Evidence of specific acts showing good conduct not admissible on issue of suspended sentence.
    In homicide prosecution, exclusion of defendant’s testimony that during the 2½ years subsequent to the killing he had been engaged in only legitimate occupations, had kept out of trouble and had provided for his family, held proper, even though defendant claimed benefit of suspended sentence law; such testimony being evidence of specific acts showing good conduct, and not merely his reputation.
    4. Criminal law <§=665(1) — Admission of testimony by witness who had been in courtroom while under the rule discretionary with court.
    Whether witness who has been in the courtroom while under the rule should be permitted to testify is within the judicial discretion of the court.
    5. Criminal law <§=>1091 (4) — Bill, complaining ' of admission of testimony without stating the testimony, held incomplete.
    Bill, complaining of testimony given by witness, who had befen in courtroom while under the rule, without stating the testimony given by such witness, held incomplete.
    
      Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.
    ' Bob Wagley was convicted of manslaughter, and appeals.
    Affirmed.
    John W. Baskin and W. B. Ammerman, both of Ft. Worth, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

In the indictment appellant is charged with killing Lee Crowdus by striking him with a hammer. The state’s theory and testimony is to the effect that appellant, while intoxicated, entered the i>lace of business of deceased, and that when appellant started up the stairway deceased asked him his purpose. Appellant replied with an insulting epithet, and picked up a hammer, and walked to the front door. Deceased followed him, and appellant struck him with the hammer, and after he fell stamped him in the face with his foot. The blow with the hammer resulted in the death of the deceased. Appellant’s theory and testimony was, in substance, that after drinking brandy, and being in ‘search of more intoxicants, the saloons being closed, he went into the house of the deceased, and saw him and another sitting down with a bucket of beer, and approached them with a view of getting some, when the deceased got up and pushed appellant towards the door, reaching back and picking up something from a bench, with which he struck the appellant over the head and dazed him; that appellant, observing that the deceased was in the act of striking him again, hit him with his fist, and the deceased fell upon the sidewalk. There were no previous difficulties, nor ill will, and the parties were strangers.

The court charged on the law of murder, manslaughter, and self-defense. The verdict was for manslaughter, and the respective theories of the state and the appellant, as developed by the evidence, were submitted to the jury in a manner which exempts the charge, in our opinion, from the criticisms addressed to it by the appellant.

The appellant having introduced six or seven witnesses who testified to an extended acquaintance with him, and to his good reputation as a peaceable, law-abiding man, and for truth spid veracity, and the state having, in open court without limitation, admitted that his reputation in both these respects was good, there was no error in the court’s declining to hear further testimony upon the subject. Drake v. State, 68 Tex. Cr. R. 94, 151 S. W. 315; Manley v. State, 62 Tex. Cr. R. 392, 137 S. W. 1137. The fact that appellant sought the benefit of the suspended sentence law would not affect the correctness of the ruling mentioned. It is quite true, as urged by appellant, that with such plea filed the inquiry as to the reputation relates to the time of the trial. Williams v. State, 201 S. W. 188, and cases referred to. In the instant case, the appellant’s reputation was not only not assailed by the state, but there was an express admission that it was good, and both the admission and the testimony were such as bear the construction that the admission is without qualification of limitation, and extends to the time of the trial. The matter was not in issue: The question was concluded in favor of the appellant, and the exclusion of further evidence, going to show that his general reputation was good, in our judgment, in no sense abridged his right or prejudiced his ease.

A bill of exceptions is reserved to the refusal of the court to permit appellant to de-' tail certain phases of his conduct subsequent to the offense. It is stated that—

“He would testify that in the 2½ years since the killing he has been engaged in providing for his family, on his farm, and in doing certain work for the government. During said time he had been engaged in only legitimate occupations; had not been in any trouble of any kind or character since the killing.”

It is insisted that by this action the court abridged the rights of appellant to a degree requiring a reversal of the judgment; he expressly stressing the proposition that under his pleading seeking a suspended sentence the evidence was admissible. The testimony offered is of a character not per se made admissible by the suspended sentence law. It did not go to establish the reputation of the appellant, but was an effort to detail specific acts showing good conduct Pertinent observations upon the subject were made in the recent case of Baker v. State, 221 S. W. 607, from which we quote:

“Prior to the passage of the statute, the reputation of one accused of crime was a subject upon which the state was not permitted to introduce evidence unless invited by the accused. The statute mentioned extends the invitation. The reputation is to be proved, not by specific acts of misconduct, but by competent evidence to show whether his reputation is good or bad. Thompson v. State, 38 Tex. Cr. R. 340, 42 S. W. 974; Fannin v. State, 51 Tex. Cr. R. 41, 100 S. W. 916, 10 L. R. A. (N. S.) 744, 123 Am. St. Rep. 894; Jones v. State, 74 Tex. Cr. R. 203, 167 S. W. 1110;' Branch’s Ann. P. C. § 148. Specific acts become available when pertinent on cross-examination. Howard v. State, 37 Tex. Cr. R. 498, 36 S. W. 475, 66 Am. St. Rep. 812, and other cases; Branch’s Ann: P. C. p. 117. The leading case, construing the section of the suspended sentence act relating to proof of reputatiorf, adheres to the rule stated, and we see no reason for expanding it to a degree that it embrace inquiries of a character sought in the instant case nor have we authority to do' so. Williamson v. State, 74 Tex. Cr. R. 290, 167 S. W. 360.”

The bill, complaining that a certain witness was permitted by the court to give testimony after it was disclosed that she had been in the courtroom while under the rule, does not show error, the matter being one that was within the judicial discretion of the trial court. Roach v. State, 41 Tex. 263; Ham v. State, 4 Tex. App. 645; Cools v. State, 30 Tex. App. 607, 18 S. W. 412; other cases listed in Branch’s Annotated Renal Code, § 344. No breach of discretion is disclosed by the bill, nor does it therefrom appear what testimony was given by the witness, in the absence of which the bill is incomplete, and the court is unable to determine its effect. Ross v. State, 40 Tex. Cr. R. 352, 50 S. W. 336; Brown v. State, 43 Tex. Cr. R. 294, 65 S. W. 529; Chapman v. State, 37 Tex. Cr. R. 173, 39 S. W. 113; Branch’s Annotated Penal Code, § 210.

We have examined all the questions raised, and are of the opinion that the record discloses nothing indicating that appellant’s trial was otherwise than a fair and legal one.

The judgment is affirmed. 
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