
    WILLIAMSON v. STATE.
    (No. 3112.)
    (Court of Criminal Appeals of Texas.
    May 13, 1914.
    Rehearing Denied June 10, 1914.)
    1. Cbiminal Law (§ 982) — Suspension of Sentence — Reputation of Defendant — Evidence — Admissibility.
    Where accused files a plea for a suspended sentence under Acts 33d Leg. c. 7, which provides that the court shall permit testimony of the general reputation of accused to enable the jury to determine whether to recommend suspension of sentence* he puts his reputation in issue, and any legitimate evidence bearing thereon is admissible, and the state may show his bad reputation as a law-abiding citizen by proving his arrest for offenses not involving moral turpitude.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    2. Witnesses (§ 361) — Character Witnesses — Cross-Examination.
    Where witnesses for accused, who filed a plea for a suspended sentence, testified that accused’s reputation for truth, veracity, honesty, and as a law-abiding citizen was good, the state on cross-examination could ask them whether they had not heard of accused being charged with violations of the law, though such violations did not involve moral turpitude.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.]
    3. Witnesses (§ 337) — Character Witnesses — Cross-Examination.
    "Where accused filed a plea for suspended sentence, and testified in his own belialf, the state on cross-examination could ask him as to the number of times he had been arrested and confined in jail, though the offenses did not involve moral turpitude.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1113,1129-1132,1140-1142,1146-1148; Dec. Dig. § 337.]
    4. Criminal Law (§ 982) —Plea for Suspension of Sentence — Statutory Provisions.
    That accused has previously been convicted of a felony bars him of the right to file a plea for suspension of sentence under Acts 33d Leg. c. 7; but, where he has not been convicted of a felony, he may file a plea, and where his reputation justifies the suspension of the sentence on the theory that he will reform, if clemency is extended, and that society will not suffer, it may be done, but, where his reputation as shown by the life he has lived is such that there is but little or no hope of reformation without punishment, and that the best interests of society demand his imprisonment, the punishment should not be suspended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    5. Criminal Law (§ 673) — Evidence—Instructions.
    Where the evidence of the bad reputation of accused, who filed a plea for suspension of. sentence, based on his arrest for offenses not involving moral turpitude, was received to enable the jury to determine whether they would suspend punishment in case of his conviction, the court should specifically charge that the testimony should not be considered as affecting the credibility of accused as "a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    6. Witnesses (§ 337) — Credibility—Criminal Charges.
    That accused, who testified in his own behalf, had been charged with robbing a railroad car did not affect his credibility as a witness, where it was shown that, after investigation, no indictment was returned against him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. |§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    7. Criminal Law (§ 1038) — Instructions— Objections — Review.
    Under Code Or. Proc. art. 743, as amended by Acts 33d Leg. c. 138, requiring that the charge before being read to the jury be submitted to counsel, who must at that time present in writing any objections, the court on appeal will not consider the correctness of instructions, where no objection was made until after verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.],
    
      Appeal from Criminal'District Court, Dallas County; Robt. B. Seay, Judge.
    J. C. Williamson was convicted of tbeft, and be appeals.
    Affirmed.
    W. W. Nelms, of Dallas, for appellant. C. E. Lane, Asst. Atty. Cen., for the State.
    
      
       For other oases see same topic and section NUMBER in Deo. Dig. &‘Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of theft, and his punishment assessed at five years’ confinement in the state penitentiary.

All the witnesses agree that appellant, J. B. Conine, and George McCully met in a saloon in Dallas, and then took an automobile drive in an automobile belonging to Conine, going to the “Pass Time Club”; but from this time on is where the conflict occurs. Conine says that when they got to the Pass ■ Time Club one of them said, “You are not a member of the club and cannot go in; give us a little change, and we will go in and get the beer;” that he took out his pocketbook to do so, and, the bills being on top, he took them out to get the change, and as he did so appellant grabbed the bills and ran; that there were ten $10 bills, amounting to $100, that appellant took from him on that occasion.

Appellant admits riding to the Pass Time Club, but says when he got there he got out and got on the street car and went to his home; that Conine had not taken out any money when he left, and he saw and took none of his money.

McCully says as soon as he got out he went in the Pass Time Club, and did not see any one get Conine’s money, but in a few seconds he was told about Conine losing his money.

The state, to show flight, introduced evidence that the police were informed and made search for appellant, but did not succeed in locating him for some months. The theft is alleged to have taken place on April 16th, and appellant admits leaving Dallas, but says he did not do so until 28th of April, going first to Denison, then to Denver, in search of work, and there went to work for the Union ¡Pacific Railroad.

There are but two questions raised by the record, and they both call for a construction of the acts of the last Legislature. Appellant entered a plea requesting that, in the event he was convicted, his sentence be suspended. When this plea is entered by any one on trial for a felony, section 2 of the suspended sentence act (chapter 7, Acts 33d Leg. p. 8) provides that “the court shall permit testimony” to be introduced “as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence,” providing therein that, if he has theretofore been convicted of a felony, the sentence shall not be suspended. Unless a person on trial enters this plea, his reputation cannot be put in issue by the state, unless he does so; but, when he elects to avail himself of the privilege of filing this plea, then he puts his reputation in issue, and any legitimate testimony bearing on that issue becomes admissible, and, by filing this plea in this case, he opened the door for testimony bearing on his reputation. In addition to this, he introduced a number of witnesses who testified that his reputation for truth and veracity, for honesty, and as a peaceable, law-abiding citizen was good. On cross-examination of these witnesses some of them admitted they had heard he was charged with robbing a box car. The state also introduced a number of witnesses who testified appellant’s reputation as a peaceable, law-abiding citizen was bad. When appellant took the stand and testified, among other things, he said that, while he had been charged with robbing the box car, he had not been indicted for that offense, and had never been convicted of any felony. The state on cross-examination asked him if he had not been arrested as many as a dozen times, and he answered no, but admitted that he had been arrested three or four times, and had been in the city jail two or three times. Appellant strenuously objected to the testimony that he had been arrested three or four times, and had been in jail two or three times, saying that on these occasions he was charged with misdemeanors not involving moral turpitude. As to the witnesses who testified to appellant’s general reputation as a peace able, law-abiding citizen, it was certainly per missible on cross-examinaton to ask them if they had not heard of appellant being charged with violations of the law, for it has always been held that a witness testifying to general good character may be so cross-examined to test, the soundness of his opinion, to elicit data upon which it was founded, to determine whether or not such opinion is well founded. Forrester v. State, 38 Tex. Cr. R. 248, 42 S. W. 400; Bearden v. State, 44 Tex. Cr. R. 683, 73 S. W. 17. In Holloway v. State, 46 Tex. Cr. R. 307, 77 S. W. 14 this court held:

“Of course it was not competent for the state originally to put appellant’s reputation in issue ; but, he having done so, it was proper on cross-examination of his witnesses to prove by them particular acts of misconduct, or, where the proof was of general reputation on the part of appellant, that the witnesses had heard of particular acts of misconduct,” citing Rice, Cr. Ev. p. 603.

And this is not only the rule in this state,but it is so held in State v. Merriman, 34 S. C. 16, 12 S. E. 619; Ingram v. State, 67 Ala. 67; People v. Gordon, 103 Cal. 568, 37 Pac. 634; State v. Jerome, 33 Conn. 265; Cook v. State, 46 Fla. 20, 35 South. 665; Ozburn v. State, 87 Ga. 173, 13 S. E. 247; Smith v. State, 10 Ind. 106; State v. Arnold, 12 Iowa, 479; Newton v. Com. (Ky.) 102 S. W. 264; State v. Donelon, 45 La. Ann. 744, 12 South. 922; State v. Beckner, 194 Mo. 281, 91 S. W. 892, 3 L. R. A. (N. S.) 535; McCormick v. State, 66 Neb. 337, 92 N. W. 606; State v. Campbell, 20 Nev. 122, 17 Pac. 620; State v. Knapp, 45 N. H. 148; State v. Perkins, 66 N. C. 126; People v. McKane, 80 Hun, 322, 30 N. Y. Supp. 95; State v. Ogden, 39 Or. 195, 65 Pac. 449; People v. Hite, 8 Utah, 461, 33 Pac. 254.

Appellant presents these cases wherein appellant does not put his reputation in issue, and only takes the stand as a witness, and under such state of facts it has been correctly held that proof can only be made of offenses involving moral turpitude, or of the grade of felony, to affect his credit. But when he. puts his reputation in issue as a peaceable and law-abiding citizen, and he does this in this case specifically, and in addition thereto does so by filing a plea asking a suspension of sentence, then evidence which tends to show that he is not a peaceable, law-abiding citizen may be adduced on cross-examination of his witnesses, and may be adduced even though such acts are not felonies, or do not involve moral turpitude. And when he files a plea asking a suspension of sentence, this in and of itself puts in issue his reputation as a peaceable, law-abiding citizen, and any evidence which tends to show that he is not entitled to such reputation is admissible in evidence. The fact that one has theretofore been convicted of a felony bars him from availing himself of the plea, but the fact that he has not before that time been convicted of a felony does not in and of itself entitle one to a suspension of sentence; it authorizes him to enter the plea, and if his reputation theretofore is shown to be such that the best interests and welfare of the state will not suffer by suspending the sentence, and is such that hope can be entertained of his reformation by extending this clemency, it may be done. But if his reputation, the life he has lived, is such there is but little or no hope of reformation, without his being compelled to undergo punishment, and that the best interests of society demand his imprisonment, the punishment should not be suspended. This, as we understand it, is the object and purpose of the law, and when one elects to file this plea asking for clemency, if found guilty, the law puts in issue his past reputation, and evidence of the character of life he has lived in the past is admissible to enable the jury to determine whether or not the clemency should be extended; and the first bill presents no error.

However, while all the evidence objected to was admissible to enable the jury to determine whether or not they would suspend punishment for the offense committed in case they found him guilty during good behavior, it was not admissible for the purpose of affecting the credit of the defendant as a witness, for the offenses for which he had theretofore been arrested did not involve moral turpitude, and were not of the grade •of a felony, except in one instance (that in which he was charged with robbing a railroad car), and in that case, after investigation, no indictment was returned, consequently this evidence adduced did not go to his credit as a witness (Wright v. State, 63 Tex. Cr. R. 434, 140 S. W. 1105), but was admissible as bearing on his reputation as a peaceable and law-abiding citizen on his plea of suspension of sentence. The charge of the court instructed the jury:

“You are further instructed that there has been admitted before the jury evidence in regard to defendant having been arrested and charged with other offenses besides the one set out in the indictment in this case. You are instructed that defendant is not on trial for any other offense, and cannot be convicted therefor. Such evidence was admitted before you for the purpose of enabling you to pass upon the credibility of the defendant as a witness in his own behalf, and to aid you in deciding what weight you will give his testimony as a witness in this case, and, if you consider such testimony at all, it will only be for the purpose for which it was so admitted by the court.”

The first part of this charge wherein, he instructed the jury that such testimony could not be considered in passing on the guilt or innocence of the defendant in the case then on trial was a correct exposition of the law; but the charge was erroneous in instructing the jury that such testimony might be considered in passing on the credibility of the defendant as a witness, the offenses not involving moral turpitude, and not being of the grade of felony. Instead, the jury should have been instructed that, in case they found appellant guilty, it could only be considered in passing on whether or not they would recommend suspension of the sentence.

The record discloses that the charge of the court was submitted to the appellant and his counsel before being read to the jury, and no objection was made thereto as given in any respect; but after verdict appellant does except to this paragraph of the charge, and this necessarily involves a construction of article 743 of the Code of Criminal Procedure, as amended by the Acts of the Thirty-Third Legislature (chapter 138, p. 278, Sess. Acts). It was provided in that act that the charge before being read to the jury should be submitted to counsel, and they must at that time present in writing any objections to the charge, distinctly specifying each ground of objection, and, if no objection is made at that time, the case shall not be reversed because of errors in the charge, and, if such objections are made, we shall not reverse, unless such errors were calculated to injure the rights of defendant, or unless it appears he has not had a fair and impartial trial. Prior to the enactment of that law, errors in the charge could be pointed out after verdict in the motion for new trial, and this statute was passed to remedy that matter, and require attorneys to point out the errors in the charge before it was submitted to the jury, instead of after verdict. Under the law as it was formerly written, this court in an unbroken line of decisions held that, unless the error in the charge was complained of in the motion for new trial, we could not consider it, unless fundamental error was presented. Pena v. State, 38 Tex. Cr. R. 333, 42 S. W. 991; Sue v. State, 62 Tex. Cr. R. 122, 105 S. W. 804; Reyes v. State, 55 Tex. Cr. R. 422, 117 S. W. 152; Manning v. State, 46 Tex. Cr. R. 326, 3 Ann. Cas. 867, 81 S. W. 957; Bailey v. State, 45 S. W. 708; Barnett v. State, 42 Tex. Cr. R. 302, 62 S. W. 765; Magee v. State, 43 S. W. 512; Spears v. State, 41 Tex. Cr. R. 527, 56 S. W. 347.

Many other cases could be cited showing that article 743 (old Code, 723) had received a settled construction prior to its amendment 1913, 'and that is, unless the error in the charge was complained of in-the motion for new trial, and if it was presented for the first time in this court, we would not be authorized to reverse the case. With this construction before them, the Legislature deliberately, in amending the article, struck out the words “or in motion for new trial,” and required that all errors in the charge be objected to at the time of the trial, and before the charge is read to the jury, requiring that the court submit his charge to counsel for that purpose. And the question is: Are we authorized to ignore this plain statutory provision of our law, because the court improperly instructed the jury they could consider the testimony for the purpose of affecting the credit of the defendant as a witness, when it was not admissible for that purpose, but for a wholly different purpose? We do not think so. If the law is wrong in thus providing, it is not for us to construe away; but application should be made to the body which enacted the law. Because the error in the charge is not in any manner complained of until after verdict, we cannot consider it under the present law any more than the court under the former law could if it had not been complained of in the motion for new trial; and it necessarily follows that the judgment must be affirmed, and it is accordingly so ordered.  