
    McMULLEN v. STATE.
    (No. 8137.)
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1924.)
    1. Witnesses <&wkey;274(l) — Limit of state’s right to meet character testimony by reference to specific crimes.
    While, where defendant puts in issue his general reputation as a peaceable, law-abiding citizen, state on cross-examination of witnesses to such reputation may, to weaken the force of their testimony, ask as to their knowledge, or having heard, of defendant’s connection with specific instances of crime, it may not for such purpose, independent of the question of such witnesses’ knowledge, by other witnesses, prove defendant’s guilt of specific crimes, or his general bad reputation for doing the thing involved in the charge against him.
    2. Criminal law <&wkey;>I 169(1) — Admission of evidence of defendant’s reputation for the crime prejudicial.
    Error in admitting evidence of defendant’s bad reputation for doing the thing involved in the charge against him, the evidence being circumstantial and conflicting, is prejudicial.
    Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.
    W. M. (Bully) McMullen was convicted of violation of the liquor law, and appeals.
    Reversed and remanded.
    
      Callicut & Johnson, of Corsicana, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Navarro county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There is a complaint of misconduct of the jury, and also one of a refusal on the part of the trial court to permit witnesses to testify for the appellant, because they had been in the courtroom; the rule having been invoked. We will not discuss these propositions, inasmuch as they are not likely to arisp upon another trial of the case.

Appellant introduced testimony to show his good reputation as a peaceable, law-abiding citizen. The state cross-examined his witnesses on this point, and asked them -if they did not know or had not heard that appellant was a bootlegger. Each of them answered in the negative. Thereupon and •over objection the state put on the stand in its rebuttal witnesses who testified that appellant had a bad reputation as a bootlegger; i. e. as.a maker and seller of whisky, as said by witness Biorgan, and as said by witness Strain, “The general talk in the community is that he made and sold whisky.” One witness said appellant was “a noted bootlegger.” We have never undertaken to define the term “bootlegger,” though in other jurisdictions it has been said that he is one who commonly sells or peddles intoxicating liquor, and such we think to be the generally accepted understanding of the term. In our opinion the state went beyond its rights in introducing such testimony as that above referred to. The accused, by putting in issue his general reputation as a peaceable, law-abiding citizen, opened the way for the state in legitimate cross-examination of the witnesses who so testified to ask as to their knowledge or their having heard of appellant’s connection with specific instances of crime which statements, if made by them, would have weakened the force of their testimony that his reputation was good. The state has no right, independent of the question of the knowledge of such witnesses, to prove that appellant has been guilty of specific crimes for the purpose of overcoming the force of the defensive testimony of good reputation. Nor do we think the state can ever prove by other witnesses that the accused has a general bad reputation for doing the very thing involved in the charge against him on the trial — in the instant case, the making of intoxicating liquor. This might not be true if the accused had opened up the question of his reputation for making such liquor. Gothard v. State, 94 Tex. Cr. R. 538, 252 S. W. 508; Burns v. State, 94 Tex. Cr. R. 533, 252 S. W. 509; Lovelady v. State, 95 Tex. Cr. R. 571, 255 S. W. 415. This complaint was evidenced by several bills of exception which are qualified by the court by saying that if there was anything wrong it was cured by special charge No. 8 given. We regret our inability to agree. Special charge No. 8 merely restricted the jury’s consideration of testimony as to reputation to what occurred before the date of the- offense charged.

The case is one of circumstantial evidence and of conflicting testimony, and we are not able to say that the admission of the wrongful testimony above discussed was not materially hurtful to the accused.

The judgment will be reversed, and the cause remanded. 
      <&wkey;For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and IndexeB
     