
    HOPPER v. STATE.
    (No. 9410.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    1. Witnesses <@=388(2) — 'Testimony as to declaration showing attitude of witness, divorced wife of defendant prosecuted for desertion . of children, properly excluded where no predicate laid.
    In prosecution for desertion of minor children and failure to support them, proposed testimony on behalf of defendant that his divorced wife had stated it to be her purpose to annoy and humiliate him so as to make it too hot for him to stay in town, though admissible on proper predicate, was properly excluded, where defendant laid: no proper predicate and did not question former wife concerning such matters, under rule that to impeach testimony of a witness it is necessary to make inquiry of witness concerning matters inquired into.
    2. Parent and child <@=I7(6) — Evidence of defendant’s reputation as honest and fair-dealing man, prompt in meeting financial obligations, held admissible where defendant charged with willful desertion and failure to support minor children. ,
    In prosecution for willful desertion and failure to support minor children making an issue of defendant’s intent, defense being failure to support because of financial condition, it was error to exclude testimony of defendant’s reputation as an honest fair-dealing man, prompt in paying financial obligations.
    Commissioners’ Decision.
    
      ' Appeal from Harris County Court, at Law; Ben E. Wilson, Judge.
    J. R. Hopper was convicted of willfully deserting and refusing to support his minor children, and he appeals.
    Reversed, and remanded.
    B. L. Palmer, of Houston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the criminal district court of Harris county for the offense of willfully deserting a,nd refusing to support his minor children, and hi^ punishment assessed at a fine of $25.

By bills of exception 2, 3, 4, and 5, complaint is made to the action of the court in refusing to permit the appellant to show by witnesses that his divorced wife had stated to them in substance that it was her purpose to annoy, harass, and humiliate the defendant in every possible manner, and to make it too hot for him to stay in town, and that she had gone to the Lodge of the Knights of Pythias and stated that her husband deserted her and the children and left them without food and asked the lodge for assistance.' Said bills fail to show that there was any predicate laid for such testimony, or that the witness Mrs. Hopper had been interrogated in any manner upon cross-examination concerning any of said matters. The general rule is, when it is Sought to impeach the testimony of a witness, it is necessary to make inquiry of said witness concerning the matters inquired into, and we are of the opinion that this case is not an exception to the general rule, and that, said testimony though admissible upon a proper predicate, the court committed no error in refusing this testimony until the appellant had laid the proper predicate and interrogated his former wife concerning such matters. It is contended by the appellant that this testimony would have shown her animus in the matter, and doubtless would if true; but we are clearly of the opinion that she should have been given an opportunity to have explained, if she could, why or under what conditions she made such alleged statements, if any made by her, and it would have been a very easy matter to have laid such predicate'for such testimony while she was upon the witness stand upon cross-examination.

Appellant complains in his bill of exception No. 6 to the action of the trial court in refusing to permit him to prove by the witness Dally that he was acquainted with the general reputation of the appellant in the community in which he lives as an honest, fair-dealing man in the business world, and that his reputation was good towards paying his financial obligations. We are of the opinion, under the peculiar facts of this case, that said testimony was admissible. The charge made against him by the state was a willful desertion and a failure to. support his minor children, who were in need of financial as-sistence from him, and the appellant’s defense was that he had not willfully refused to support said children, and that the reason that he had not done so was on account of his financial condition, and offered testimony by other witnesses supporting that contention. This charge of the state put directly in issue the intent of the defendant, and though the court properly charged on the willfulness of the appellant, we think this character of testimony offered by him was admissible. Coffee v. State, 1 Tex. App. 548; Lockhart v. State, 3 Tex. App. 567; Jones v. State, 10 Tex. App. 552; Branch’s P. C. § 148, and authorities there collated; Underhill, Criminal Evidence (3d Ed.) §§ 135 and 136. ’

There are other matters complained óf in the record which we deem unnecessary for a discussion at this time. Eor the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed, and the cause remanded.

PER CURIAM.

' The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      
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