
    PRATER v. STATE.
    (No. 9530.)
    (Court of Criminal Appeals of Texas.
    May 26, 1926.
    State’s Rehearing Denied June 23, 1926.)
    1. Criminal law &wkey;>78l(8) — Refusal of charge that admissions and confessions introduced by state must be taken as true in so far as favorable to accused and not shown untrue held not error, where accused testified in his own behalf.
    In homicide prosecution, where accused testified fully in his defense, and court charged thereon, refusal of instruction that state, having introduced admissions and confessions of accused, was bound by parts favorable to him, unless shown untrue, held not error.
    2. Criminal law &wkey;>72i 1/2(2).
    In homicide prosecution, permitting county attorney in closing argument to comment on failure of accused to produce his wife as witness held not erroneous.
    3. Homicide <S&wkey;338(3).
    Where accused^ admitted he shot deceased with pistol, permitting leading questions to show witness heard pistol shot held not harmful.
    4. Witnesses <&wkey;!93.
    Statements between husband and wife in presence of others are not inadmissible as privileged communications.
    5. Criminal law &wkey;>388.
    “General reputation” is solely what people generally think and state about it, and specific acts may not be shown on examination of witness in chief to prove good or bad reputation of accused.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, General Reputation.]
    6. Witnesses <&wkey;274(l).
    On cross-examination as to general reputation- of accused it is not permissible to show wliat witness knows individually about specific or particular acts or conduct of accused.
    7. Witnesses <@^274(l) — Permitting cross-examination showing that witness paid fine for accused in certain trouble, in order to im- , peach reputation of accused, held error.
    Permitting state to prove on cross-examination that witness had paid fine for accused over some trouble which latter had with his father-in-law and wife, for purpose of impeaching reputation of accused, % eld erroneous.
    8. Homicide <&wkey;>340(2) — in homicide prosecution, where accused admittedly shot deceased with pistol, but claimed self-defense, instruction that means of killing might be considered to establish intent held to require reversal.
    In homicide prosecution on theory that killing was deliberate on account of deceased’s acts toward accused and wife, where accused pleaded self-defense and admitted killing deceased 'with a pistol, instruction that jury might consider instrument or means by which killing was effected to determine intent of accused held to require reversal, under state of record.
    other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Milam County; John Watson, Judge.
    Pete Prater was convicted of murder, and he appeals.
    Reversed and remanded.
    Chambers, Wallace & Gillis, of Cameron, for appellant.
    Sam - -D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   RAKER, J.

The appellant was convicted in the district court of Milam county for murder,- and his punishment assessed at 10 years in the penitentiary. The record discloses that the appellant and the deceased, Eddie Jackson, were negroes; that the appellant’s wife had separated from him and was living with her sister near the home of the deceased; that on the night of the homicide there was a carnival in Cameron, and that the deceased, appellant’s wife, and appellant met at the carnival; that the appellant sought to get his wife to talk to him; and that the deceased suggested or stated to her not to do so, and not to go with him. It seems from the record that the appellant left the presence of his wife and deceased, or became separated from them, and after-wards a pistol shot was heard, and the deceased was found dead upon the streets of Cameron. It was the contention of the state that the appellant murdered the deceased, and it was the contention of the appellant ■ — and he testified to that effect — that the deceased was killed by him in self-defense. Appellant testified, in effect, that; upon going down the street from the carnival, the deceased intercepted him and threatened him, and-that, from deceased’s acts and conduct, he believed that his life was in danger, whereupon he shot and killed the deceased. The undisputed evidence shows that, when the deceased was found, he had a .pistol in the waistband of his pants.

There were no eyewitnesses to the homicide, and the state, in making its case in chief, introduced the witness, Taylor, who testified, in effect, that the appellant admitted to him that he killed the deceased, but that he did so after he was accosted by the deceased and threatened, and to the effect that it was in self-defense. The appellant prepared and presented to the court a special charge requesting that the court charge the jury that, the state having introduced said admissions and confessions, the whole of same were to be taken together, and the state would be bound thereby, unless shown to be untrue, which charge was refused by the court. The appellant contends that the refusal of this charge was error. We are of the opinion that, under the iacts of this case, there was no error in the refusal of same. The contention of the appellant would be in beeping with the authorities cited by his counsel if the ease had closed without any additional testimony on this issue of the hilling, but, the defendant having taken the stand in his own behalf and testified fully to his defense, and the court having charged the jury fully thereon, this case is taken out of the rule announced in the decisions cited by the appellant, and is brought, we think, under the.rule announced by this court in the case of Pickens v. State, 86 Tex. Cr. R. 659, 218 S. W. 755, and the authorities therein cited.

In bills of exception 1 and 6 complaint is made to the action of the court in permitting the county attorney, in his closing argument to the jury, to comment upon the failure of the appellant to introduce his wife as a witness. There is no merit in this contention. In Branch’s Ann. P. C. § 372, it is stated:

“State’s counsel may comment on the failure of the defendant to produce his wife as a witness or upon any omissions in her testimony if she testifies” — citing Mercer v. State, 17 Tex. App. 467; Fondren v. State, 74 Tex. Cr. R. 552, 169 S. W. 416; Gomez v. State, 75 Tex. Cr. R. 239, 170 S. W. 713, and many other authorities thereunder.

In bill of exception No. 3 appellant complains of the action of the court in permitting the state to>ask the witnes? Jackson leading questions relative to hearing the noise similar to the report of a pistol or gun about the time of the alleged homicide. We fail to see, from the bill as presented, any harmful error in the admission of this testimony. The record discloses that the appellant admitted that he shot and killed the deceased with a pistol; therefore the questions complained of as leading and improper on this issue could not be reversible error. Branch’s Ann. P. O. § 157, par. 8, states:

“Permitting' a leading question improperly will not he reversible error in' the absence of a showing of prejudice thereby” — citing West v. State, 2 Tex. App. 474; Hill v. State, 76 Tex. Cr. R. 269, 173 S. W. 1024, and many other authorities.

In bill No. 4 appellant complains of the action of the court in permitting the state to prove by the witness Adeline Daniels that,’ when the a'ppellant came to where his wife was, at the carnival, he called her to come to him, and that she started to go to him, but then ran back, and said she was afraid of him,' and- that the appellant again told her to come on. The objection urged to this testimony was that it was a conversation between a husband and wife, and the admission of same was, iri effect, permitting the wife to testify against her husband. This bill reveals that said witness and the deceased were present also, and, under the authorities, statements made between husband and wife in the presence of others do not come within the rule of privileged communications. Cole v. State, 51 Tex. Cr. R. 96, 101 S. W. 218; Glasser v. State, 90 Tex. Cr. R. 124, 233 S. W. 969; Gilmore v. State, 91 Tex. Cr. R. 37, 241 S. W. 492.

In bill No. 5 complaint is made to the action of the court in permitting the state to prove by the witness Crawford, on cross-examination, that he had paid a fine for appellant over some trouble which the latter had with his father-in-law and his wife. The objection urged to this testimony was that it was error for the court to permit the state to impeach the reputation of the appellant, on cross-examination, by showing that he (the witness) had paid a fine for appellant for disturbing the peace, and to the effect that it was error to prove, on cross-examination, specific acts known to said witness in rebuttal of the testimony of said witness'in chief that appellant’s general reputation was good, as a law-abiding citizen. We think the court was in error in admitting this testimony involving specific acts and conduct of the appellant known by the witness for the purpose of attempting to rebut the testimony in chief of this witness on the general reputation of appellant for good character, and that said cross-examination should have been limited, not to specific acts and conduct known to said witness, but to what he had heard stated, if anything, about said specific acts. General reputation is confined solely to what people generally think and state about it, and it is not permitted, on an examination of the witness in chief, to show specific acts, in order to show good or bad reputation; neither do we think it is permissible, on cross-examination, to show by the witness what he knows individually about specific or particular acts or conduct of the accused, because this.would do violence to the principle upon which testimony on character is based, and,- as has been said by eminent writers,' would unnecessarily extend the length of the trial, since it would require or call' for testimony on the part of the accused to refute or rebut such testimony of specific acts, and would do violence to the proposition that the accused is presumed to know and be prepared to answer upon trial what the public knows generally, but is not supposed to know, and be ready to answer specific acts, charges, and conduct involving matters other than that which he is called to answer upon trial.

Underhill on Criminal Evidence (3d Ed.) § 141, pp. 181-182, states:

“Evidence of good or bad character is restricted to general reputation and does not extend to particulars. It is error to permit a character witness to be cross-examined as to his own knowledge of particular acts of bad conduct by accused.”

In the ease of State v. Roderick, rendered by the Supreme Court of Ohio (77 Ohio St. 801, 82 N. E. 1082), 14 L. R. A. (N. S.) 740, note VII, in discussing this subject, it is stated:

“But, while it is permissible to cross-examine witnesses who testify in chief to a person’s character, as to any reports or rumors that may have reached their ears of specific facts and particular instances of conduct inconsistent with the character attributed, the facts and conduct themselves are not allowed to be proved. The truth or falsity of the reports, charges, or rumors referred to cannot be established. The details of the transactions mentioned cannot be elicited; in short, character can no more be proved by proof of particular facts and specific acts on cross-examinations than it can on examinations in chief” — citing many authorities from the Supreme Courts of Alabama, Florida, Georgia, Iowa, Illinois, Kentucky, Massachusetts, Missouri, New Jersey, New York, Ohio, and Wisconsin.

1 Wigmore on Evidence, § 197, p. 242, holds to the same effect as the authorities supra, and states in that connection;

“Thus, the defendant’s misconduct is not inquired after as a fact to show his character; but as a rumor to discredit the witness’ assertion. A question, therefore, which does not expressly refer to the witness’ hearing of the conduct as rumored, is improper because it aims apparently at the conduct, as a fact showing the defendant’s character. Precisely the same principle is applicable to cross-examination of one testifying to a witness’ character.”

Also, see 2 Wigmore on Evidence, § 988, ■ where the same proposition is fully discussed as in the section supra.

This court, in Rosamond v. State, 101 Tex. Cr. R. 315, on rehearing, 276 S. W. 247, speak-’ ing through Judge Hawkins, on the issue and the question of reputation, states:

“We observe nothing in the present case which would make inapplicable the rule that, when a defendant has put in issue his general reputation, witnesses introduced by him to support it may not, for the purpose of throwing light upon the weight to be given their testimony, be asked if they had not heard of particular and specific acts upon the part of appellant which would be inconsistent with the character which the witnesses were called to prove.”

In Wright v. State, 98 Tex. Cr. R. 513, op. 516, 266 S. W. 783, 784, this court, speaking through Judge Hawkins, stated:

“Where a defendant puts his general reputation in issue, and supports the same by witnesses who testify that they know such reputation, and know it to be good, the state is debarred from joining issue upon this question by proving specific acts of misconduct against defendant, but may ask a witness who has testified to good reputation if he has not heard of instances of misconduct upon defendant’s part which would go to affect the weight of. the witness’ testimony. * * * Much confusion had arisen with reference to this matter, especially as applied to cases where suspended sentence had been requested,' and upon motion for rehearing in Johnson v. State, 91 Tex. Cr. R. 582, 241 S. W. 484, we undertook to review the question at length, holding that proof of general reputation was subject to the same rules in cases where suspended sentence had been requested as where a defendant had placed his general reputation in issue.”

We are aware of the fact that there are cases by this court wherein it is stated, in substance, that on cross-examination of a character witness it is permissible to ask him relative to specific acts of misconduct bearing on the particular trait of character under investigation, but those cases, as we understand them, are where the court, in using said language, inadvertently does so, not with the thought.or idea that the cross-examination can be extended to the knowledge of the witness of specific facts known to him, but only to such specific facts as he has heard discussed. We are also apprised of the fact that it is held in some courts outside of this state that on cross-examination it is permissible to prove by the witness specific facts of misconduct within his own knowledge, but we think the great weight of authority, and the reason therefor, is to the contrary.

The court, in paragraph 6 of his charge, charged the jury as follows:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to' produce death, it is not to be presumed -that death was designed, unless, from the manner in which it was used; such intention evidently appears.”

The appellant objected in a timely manner to this charge, on the ground that there was no evidence warranting such a charge to the jury, and urges here that the court committed reversible error in instructing the jury that they could take into consideration in this case the instrument or means used by which the homicide was committed in judging the intent of the appellant; in other words, the appellant contends that this charge was upon the weight of the evidence, and was instructing the jury to the effect that they could take into consideration the weapon used by the appellant in arriving at his intent in committing the homicide. The record discloses that there was no controversy as to the weapon used by the appellant being a pistol, a deadly weapon, and that it was used in a deadly manner. The record discloses that there were no eyewitnesses to the killing, except the appellant, and he testified to a state of facts which woiild exonerate him, if believed.by the jury, and afford to him justification for the homicide, and the state’s contention being — and some evidence offered in support thereof — that the homicide was committed by the appellant deliberately and on account of deceased’s acts toward bis wife, or on account of wbat deceased said to bis wife wben be was trying to get ber to come to bim, under tbis state of facts we are forced to tbe conclusion that tbe court committed a harmful error in giving tbis charge to tbe jury. There is no doubt but that tbe charge was erroneous, and tbe only question that gives tbis court concern is tbe matter of determining tbe harmful nature of same. After a careful examination of tbe entire record, we are forced to the conclusion that tbe charge complained of was of such a harmful naturé that it requires a reversal of tbis case. Posos v. State, 100 Tex. Cr. R. 64, 271 S. W. 905, on rehearing.

Por tbe errors above discussed, we are of tbe opinion that tbe judgment of tbe trial court should be reversed and remanded, and it is accordingly so ordered.

PER OURIAM.

Tbe foregoing opinion by tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals, and approved by tbe court.

On Motion for Rehearing.

MORROW, P. J.

Our re-examination of tbe record in tbe light of tbe state’s motion for rehearing leaves us of tbe opinion that tbe proper disposition of tbe case was made on tbe original bearing.

Tbe motion is overruled.  