
    ROSE v. STATE.
    (No. 7148.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1922.)
    1. Witnesses <&wkey;79(I)— Excluding reputation evidence, shown on cross-examination to be incompetent, not error.
    Even though a witness state that he knows the general reputation inquired about and that it is bad, if on cross-examination it appears that he was incompetent to give such opinion, it would not be error to exclude his testimony.
    2. Witnesses &wkey;>37 (4) — Witness may testify as to good reputation, without having heard it discussed. J
    Witnesses may testify to the good reputation of parties inquired about, without having heard such reputation discussed.
    3. Witnesses <@=»374(1) — Refusing evidence as to state witness’ conduct at time of homicide ( not error.
    Where a state witness testified, that, after the shooting, defendant’s pistol fell from his hand and witness grabbed it, and that defendant ran and witness held the pistol in position to shoot till officers arrived, refusing evidence of defendant’s daughter that she arrived on the scene shortly afterwards and saw witness have in his hand a pistol pointed at defendant, and that he pointed it at her and made an effort to shoot her, was proper, the rejected evidence not shedding light on the purpose and prejudice of the witness.
    4. Criminal law <&wkey;377 — Character witness for accused may not be questioned whether he ever heard accused’s reputation for truth was bad.
    A witness called to sustain the character of defendant may not be asked originally if he had ever heard anything to the effect that the reputation of accused for telling the truth was bad.
    5. Witnesses <&wkey;337(5) — Defendant on witness stand open to attack showing convictions for offenses involving moral turpitude.
    In a murder prosecution, where defendant took .the stand, he was open to proper attack showing his legal charge, arrest or conviction for felony or any offense involving moral turpitude, and might properly be interrogated about these while a witness, but charges for misdemeanors involving no moral turpitude were not provable as affecting his eredib'lity.
    
      6. Criminal law <&wkey;380 — Witnesses <&wkey;274(2) —State may not prove by its witnesses isolated acts of defendant’s misconduct.
    In a homicide prosecution, where witnesses for defendant sought to prove his good reputation were on the stand, the state might, on cross-examination, have asked them if they had heard of named misconduct of accused amounting to violation of law, but, having declined to so cross-examine, it could not introduce its own witnesses to prove isolated acts of defendant’s misconduct.
    7. Witnesses <S&wkey;274(2)— State may not prove by cross-examination of defendant’s witnesses- evidence of isolated acts of defendant’s misconduct, except from those by whom defendant supported his good reputation.
    In a criminal prosecution, where defendant seeks to prove his good reputation by witnesses, the state may cross-examine as to whether witnesses have heard of named misconduct of defendant amounting to a violation of law, but such evidence may be shown by cross-examination of witnesses for defendant only from those by whom he sought to support his good reputation.
    8. Criminal law <&wkey;380 — Admitting evidence as to isolated acts of defendant’s misconduct not involving moral turpitude reversible error.
    In a murder prosecution, where defendant had not testified as to his own good reputation for peace and quietude, admitting evidence as to isolated acts of his misconduct not involving moral turpitude was reversible error.
    Appeal from Criminal District Court, Tar-rant County.
    A. D. Rose was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Mays & Mays, E. M. Chaney, and Will R. Parker, all of Port Worth, for appellant.
    Jesse M. Brown, Cr. Dist. Atty., of Port Worth, and R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIM'ORE, J.

Appellant was convicted in the criminal district court of Tarrant county of manslaughter, and his punishment fixed at 5 years in the penitentiary.

The evidence shows a killing occurring among a group of negroes, all of the eyewitnesses present testifying for the state, except appellant himself. A statement of the facts and a discussion of their sufficienee is not necessary to the disposition, which we have made of the case, and is omitted.

Even though a witness answer on original examination that he knows the general reputation inquired about and that it is bad, if on cross-examination it satisfactorily appears that said witness is incompetent to give such opinion, it would not be error on the part of the trial court to exclude the testimony. Trammell v. State, 10 Tex. App. 468. Witnesses may testify to the good reputation of parties inquired about, without having ever heard such reputation discussed, and this seems to be the holding of the authorities cited by appellant, but we know of no case holding that one may testify to the bad reputation of a party whose reputation he has never heard in any way discussed.

A state witness testified that, after appellant shot deceased, the pistol of appellant fell from his hand and witness grabbed it; that appellant ran and witness held the pistol in a position to shoot till the officers arrived. We find no error in the refusal of the trial court to allow appellant’s daughter to testify that she arrived on the scene a short time after the shooting and saw the witness above mentioned have in his hand a pistol pointed in the direction of appellant, arid that he pointed it at her and made an effort to shoot her. Such rejected testimony would not seem to shed light on the interest, purpose, or prejudice of said state witness.

A witness called to sustain the character of the accused may not be asked originally if he had ever heard anything to the effect that the reputation of the accused for telling the truth was bad. The rules governing proof in such case are well understood. Prom the bill of exceptions presenting this matter, it further appears that the witness had already testified that he did not know the general reputation of the accused in the regard mentioned.

Appellant introdüced a number of witnesses by whom he proved his good reputation for being a peaceable, law-abiding citizen in Ellis county, where he had gone to work and picked cotton for a number of years. Thereafter, and while he was a witness in his own behalf, appellant was asked by the state, on cross-examination, as appears from bills of exception Nos. 5, 8, 9,- and 10, various questions relative to trouble and difficulties that he had had with different people. It appears from said bill of exceptions No. 5 that he was asked if he did not have trouble with a white man named Mein, and if he had not cursed him and threatened to kill him, etc., all of which was over the objection of appellant. He admitted that he had had some words with Mr. Mein, and that on one occasion he had tried to hit him but did not; that Mr. Mein had turned 25 head of cattle into appellant’s cane. By bill of exceptions No. 8 we are apprised of the fact that appellant was asked if he did not have trouble with Dan Jackson, a negro man, out there and if he had not cursed him and tried to hit him, objection to which matter was overruled, and appellant answered that he did not remember. Prom bill of exceptions No. 9 we learn'that he was asked if he did not have trouble with Mr. Woods, a white man, who worked at a horse and mule barn, to which question, over objection, appellant answered that he did not know such party. By bill of exceptions No. 10 is set forth appellant’s objection to the question if he had not had trouble and been arrested for cursing Ban Williams, and if there was not now pending a case against him for cursing Dan Williams, to which appellant stated that if there was such case pending it was a new one to him.

Appellant, having taken the witness stand, was open to proper attack showing his legal charge, arrest or conviction for felony or any offense involving moral turpitude and he might properly have been interrogated about these while a witness, but legal charges, arrests and convictions for misdemeanors involving no moral turpitude are not provable for the purpose of affecting the credibility of the defendant who has taken the stand. In the instant case while the witnesses by whom appellant sought to prove his good reputation for being a peaceable, law-abiding citizen, were on the stand, the state, for the purpose of testing their knowledge and as affecting the weight to be given their testimony, might, on cross-examination, have asked them if they had heard of named misconduct of the accused amounting to a violation of the law. Mr. Branch, on page 117 of his Annotated P. C., cites many authorities supporting this proposition.

The state, having declined to so cross-examine said witnesses, may not introduce its own witnesses to prove isolated acts of such misconduct on the part of the accused. Thompson v. State, 38 Tex. Cr. R. 341, 42 S. W. 974; Dimry v. State, 41 Tex. Cr. R. 272, 53 S. W. 853. Nor do we think such evidence may be sought by cross-examination of witnesses for the defense, other than those by whom he sought to support his good reputation, by asking them in reference to the facts of such isolated acts of misconduct on the part of the accused. Nor do we think such facts provable, over objection by the admission in whole or in part by the accused on cross-examination, if he take the witness stand. Ward v. State, 70 Tex. Cr. R. 417, 159 S. W. 272; Johnson v. State (Tex. Cr. App.) 241 S. W. 484; Fountain v. State, 90 Tex. Cr. R. 474, 241 S. W. 489; Waters v. State (Tex. Cr. App.) 241 S. W. 496.

In the instant case appellant had not testified as to his own good reputation for peaqe and quietude. Cross-examination of him as to isolated instances of misconduct on his part, not amounting to felonies or involving moral turpitude, could have no legitimate effect in weakening the force of any testimony given by him, but might and probably would have much to do with prejudicing the jury against him. To the state’s questions as to his guilt of the various acts of misconduct inquired about, he returned answers admitting in part some of the matters sought to be elicited, and returning evasive answers to other questions from which the state or the jury might easily conclude him guilty of such other acts. There was no issue of suspended sentence in the case. Evidence whose effect was only to indicate numerous petty difficulties on the part of the accused with persons other than deceased, and at different times and places from that of the homicide, was not admissible under this record, and may have contributed, as said by us in the Waters Case, supra, to the maximum penalty for manslaughter which was inflicted on appellant by the jury.

For the error in the admission of the testimony above referred to, the judgment of the trial court will be reversed, and the cause remanded. 
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