
    SKELTON v. STATE.
    (No. 10010.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1927.)
    i|. Criminal láw <©==>364(3) — Act of defendant in jumping over fence and pursuing .deceased’s companion, after shooting deceased, held res gestae.
    Act of defendant in jumping over garden fence, after having shot deceased, and pursuing his companion, could be proved as res gestae.
    2. Criminal law <@=>450 — Opinion of defendant’s wife that he would kill deceased held inadmissible.
    Statement in letter written by wife of defendant, in murder prosecution, which expressed her opinion that defendant would kill deceased if he ever had an opportunity, was inadmissible, because it. tended to influence jury against defendant, and was only witness’ opinion.
    3. Criminal law <©=3982 — Rules concerning proof of general reputation of defendant in criminal prosecution were not changed by Suspended Sentence Law (Vernon’s Ann. Code Cr. Proc. 1925, art. 776).
    Suspended Sentence Law (Vernon’s Ann. Code Or. Proc. 1925, art. 776) did not change settled rules regarding proof of general reputation of one accused of crime.
    4. Criminal law <@=>982 — Proof of general reputation of one accused of crime, as affecting
    . right of suspended sentence, must relate to peace and law-abidingness.
    Proof by either party to criminal prosecution regarding general reputation of one accused of crime, as affecting right of accused to suspended sentence, must be as to hi's general, reputation for -being peaceable and law-abiding citizen.
    5. Homicide <@=>163(1) — General reputation of defendant in homicide case for peace cannot be assailed by showing he attacked others with knife and gun. >
    General reputation of defendant in homicide prosecution for being peaceable and law-abiding could not be directly assailed by proving defendant had attempted to cut person with knife, and had drawn gun on another, it not.
    ’ being permissible to attack reputation of defendant in criminal case by proving specific acts of misconduct or commission of specific acts.
    6. Criminal law <©=>982 — Filing application for suspended sentence puts general reputation for law-abidingness of defendant in issue.
    General reputation for law-abidingness of one accused of crime is injected into case as an issue, when application for suspended sentence •is filed.
    7. Criminal law <©=>379 — Any witness knowing general reputation of defendant can testify thereto, whether or not defendant has testi.fied.
    General reputation of one accused of crime can be attacked or supported by testimony of any witness who qualifies, as to his knowledge of such general reputation, whether or not defendant has testified.
    8. Witnesses <©=274(2) — 'Testimony concerning defendant’s reputation may be weakened by cross-examining witnesses as to any misconduct by him at variance with their testimony.
    Witnesses who are being . cross-examnied .as "to general reputation of . one accused of crime may be asked whether they have heard of specific acts of misconduct by defendant at variance with character ascribed to him by them in order to weaken force of their' testimony.
    •9. Criminal law <©=>419, 420(12) — Statement made promptly after commission of homicide before justice of peace held inadmissible as to what others told witness.
    Written testimony, taken before justice of peace soon after commission of homicide, lleld inadmissible as to what witness heard from others; such evidence not being binding on defendant.
    , Appeal from District Court, Hopkins Coun'ty; J. M. Melton, Judge.
    J. F. Skelton was convicted of murder, and be appeals.
    Reversed and remanded.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty.,’ of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Hopkins county of murder; punishment, eight years in the penitentiary.

That appellant killed deceased is not disputed, and the only question for the jury appeared to be whether the homicide was murder or manslaughter. Appellant claimed to have been so aroused from what he deemed insulting conduct of the deceased toward his daughter, at the time of the homicide, as to render his mind incapable of cool reflection. He testified, as did his wife and daughter, that on the morning of the day of the homicide he was informed for the first time by his wife of a number of acts on the part of the deceased and another young man toward the 15 year old daughter of appellant, of such nature as to greatly arouse and excite his anger and rage. Appellant was near his house on his way to a well to get some water when he discovered the presence of deceased and the other young man referred to in the road near his house. He went hastily to the house, got a shotgun, went down into the garden, fired at the two young men, and, according to a state witness, then jumped over the fence, and pursued one of the young men, who ran a short distance, shooting at him again, and then came back to the place where deceased was lying, and struck him over the head with the barrel of his gun several times.

We have examined all the bills of exception and complaints made by .appellant of the various acts of procedure appearing in the record, and are of opinion that, save those discussed, none of the others present any error. We do not think appellant entitled to have the indictment, quashed; the case on this point being controlled by the opinion in Tom Gentry v. State (No. 10000, handed down on January 19, 1927) 290 S. W. 541. The act of appellant in jumping over his garden fence and pursuing young Underwood was part of the res gestse, and proof of that. fact was clearly admissible. We perceive no error in the admission- of the statement made by appellant in the nature of a confession.'

Appellant’s bill of exceptions No. 5 shows that, after his wife had .testified at length to statements made by her to him on the morning of the homicide, and to the fact that she had never told him of these things before, and the effect her story produced upon him in the way of arousing and exciting and enraging, him, she was asked if she had not written a letter to her sister on the 22d of July, 1925, four days prior to the homicide, in which she made the following statement:

“John (meaning defendant) wont let us go anywhere since we were up here. We sure have had it since we came back. 'He asked Earnest about it when he was here, and Earnest told him all about them boys being up there. He has done had one fight over it, and I guess he will kill Clarence Smith if he ever does get a chance at him. He says if he finds out I knew they were up there he will kill me too, so guess we will have it sure enough when ma leaves. I sure have seen a world of trouble since I saw you last, but I. am trying to live so if he i does take my life I am ready to go, but it is sure hard and all the time fussed at I could write and tell you more, but will wait.”

Appellant objected to this for many reasons. In our opinion, the testimony should not have .been received. The entire effort of appellant was to have the jury believe him guiltless of a malicious killing, and that they should find him guilty only of manslaughter. The opinion of his wife, expressed in this letter, to the effect that before the homicide she had said that she guessed he was going to kill- Clarence Smith i£ lie ever got a chance at him, would seem inadmissible. See Drake v. State, 29 Tex. App. 265, 15 S. W. 725; Morton v. State, 43 Tex. Cr. R. 533, 67 S. W. 115; Theriot v. State, 89 Tex. Cr. R. 428, 231 S. W. 777; Jones v. State, 89 Tex. Cr. R. 577, 232 S. W. 847. Said statement which was but the opinion of the witness, was strongly calculated to influence the jury toward the existence of malice on the part of appellant at the time the letter was written. The entire statement in said letter tends to show that, in the opinion of the writer, appellant was making life very hard for her, and that she was afraid of him, and feared he might kill her, and that he was all the time fussing at her, and said statement was likely to excite a feeling of animosity in the breast of the jury toward appellant.

The state was permitted to prove by this witness that appellant had had trouble with Bill Perser, and tried to cut him with a knife, and other details of said difficulty; also that he had trouble with Ros'coe Anderson, and drew a gun on him, etc. Appellant objected to this testimony. The court qualifies the bills by saying that he admitted same as affecting the right to suspended sentence. The testimony should not have been admitted. We have'tried to make clear that the Suspended Sentence Law (Vernon’s. Ann. Code Cr. Proc. 1925, art. 776) makes no change in the settled rules regarding proof of general reputation, and that, as affecting the right of suspended sentence, proof from either side must be as to the general reputation of the accused for being a peaceable and law-abiding citizen. We have also said repeatedly that proof of specific acts of misconduct or the commission of specific crimes or details thereof is not admissible as directly combating the good reputation of the accused. When one accused of crime files application for suspended sentence, this puts his general reputation as a law-abiding citizen into the case as an issue. Overby v. State, 92 Tex. Cr. R. 172, 242 S. W. 213. This issue can be attacked or supported by the testimony of any witness who qualifies as to his knowledge of such general reputation, and this whether the accused has taken the witness stand or not. Whenever the purpose is to attack the general reputation of the accused for being peaceable and law-abiding, let it be plainly understood that this cannot be done, in the first instance, by proof of specific acts of misconduct or the commission of specific offenses. We have often said that, on cross-examination of witnesses to general reputation, they may be asked as to their having heard of specific acts of misconduct on the part of the accused at variance with the character ascribed to him by such witnesses; the purpose of such questions being to thus weaken the force of the testimony of such witnesses. See Sweeny v. State, 84 Tex. Cr. R. 58, 205 S. W. 335; Bride v. State, 86 Tex. Cr. R. 535, 218 S. W. 763; Baker v. State, 87 Tex. Cr. R. 308, 221 S. W. 607; Wagley v. State, 87 Tex. Cr. R. 504, 224 S. W. 687; Johnson v. State, 91 Tex. Cr. R. 582,241 S. W. 484; Townsley v. State, 103 Tex. C. R. 508, 281 S. W. 1054. In this connection our attention is attracted to what we said on this point in Hollman v. State, 87 Tex. Cr. R. 576, 223 S. W. 209, where we seem to have held that such proof of specific misconduct was admissible for the direct purpose of attacking the right of the accused to suspended sentence. We think what we there said was erroneous, and to that extent said case is. overruled.

Only so much of the written statement of the witness Bessie Skelton, made before a justice of the peace soon after the commission of the alleged homicide, would be admissible as related to material matters of which inquiry had first been made of her, followed by her denial. Examining her written statement so made, which appears in the record in its entirety, we observe that what she said therein regarding what Clyde Underwood or Clarence Smith or her stepmother had said to her would hardly seem binding on appellant, and should not have been admitted.

The other matters complained of have all been examined, and we are of opinion that same manifest no error.

For the errors mentioned, the judgment will be reversed, and the cause remanded. 
      ®=>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and. Indexes
     
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     