
    SMITH v. STATE.
    (No. 7115.)
    (Court of Criminal Appeals of Texas.
    April 25, 1923.
    Rehearing Denied June 20, 1923.)
    1. Criminal law <&wkey;982 — Testimony as to good reputation of accused on application for suspended sentence properly excluded, where not relating to time of offense.
    When an application for suspended sentence is made, and the reputation of the accused as a peaceable, law-abiding citizen made an issue, the test is his present reputation, and where the record shows that, prior to the theft of which defendant was convicted, he with other associates had committed a burglary, which fact was not denied, his reputation at the time of the commission of the theft was admittedly bad, and testimony as to his good reputation prior to his return from service in the army was properly excluded.
    2. Criminal law <&wkey;982 — On. application for suspended sentence, evidence that accused was mentally weak and easily influenced by associates properly excluded.
    The law of a suspended sentence being bottomed on the hope of reformation of the offender, evidence that accused was not of the highest order of mentality, and that he was a person easily influenced by his associates, was properly excluded on an application for suspended sentence.
    Appeal from District Court, Gillegpie County; J. H. McLean, Judge.
    Arthur Smith was convicted of theft* and he appeals.
    Affirmed.
    Alfred P. O. Petsch, of Fredericksburg, and W. O. Linden, of San Antonio, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Gillespie county of theft of property of the value of more than $50, and his punishment fixed at three years in the penitentiary.

Appellant was tried in February, 1922. Oomplaint is made of the ■ fact that he was not allowed to show that his general reputation as a law-abiding citizen was good prior to his return from the army. This was offered as bearing upon his application for a suspended sentence, appellant having pleaded guilty to the offense charged. The testimony was offered from witness Townsend, and may be discussed in connection with further testimony offered from witness Fowler to the effect that appellant’s general reputation as a law-abiding citizen was good prior to July, 1921, that being about the date of a burglary committed by appellant and some associates, which fact was not denied.

When an application for suspended sentence is presented, and the reputation of the accused as a peaceable, law-abiding citizen made an issue, the test is his present reputation. Wilson v. State, 83 Tex. Cr. R. 26, 201 S. W. 188; Wagley v. State, 87 Tex. Cr. R. 504, 224 S. W. 687. And as we understand the instant record, it was not denied that since the burglary above mentioned, some months prior to the theft charged in the instant case, appellant’s reputation in this regard had been bad. This being true, we are of opinion that the contention now before us in regard to the admission of the above testimony is unsound. We do not wish to be understood as holding that, where the accused has moved from place to place, he may be denied the privilege' of proving his reputation by separate witnesses for each time and place of his habitation. Such practice would be permissible, but in a case like this, where no witness is offered to show good reputation at the time of trial, or up to the commission of the instant offense, and it is admitted that at such time Ms reputation is bad, it is not erroneous to reject testimony which seeks to carve out of the past life of the accused a certain period and prove good reputation therein. We are cited to no authority, and know of none, holding such course proper.

We do not believe the trial court was called upon to permit appellant to show that he was not of the highest order of mentality. Appellant offered testimony, the effect of which would have been to show him a person easily influenced by his associates. The law of a suspended sentence is bottomed on the hope of reformation of the offender, and certainly evidence whose tendency would be to show that the accused was one easily persuaded to crime by any criminal would not strengthen the belief on the part of the jury that to give him a suspended sentence would reform him.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant urges that we erred in upholding the action of the trial court in the two matters discussed in our original opinion. No authorities are cited in support of the motion. We have again reviewed each proposition. We think it unsafe to vary from the established rules of procedure in applying the law in the trial of cases under recent enactments. A tendency to let down the bars or open wider the gates for the admission of evidence 'upon the issue of suspended sentence is observed in some of the authorities. We have endeavored to correct such tendéney as far as we may. Johnson v. State, 91 Tex. Cr. R. 582, 241 S. W. 484. In the case of Wagley v. State, 87 Tex. Cr. R. 504, 224 S. W. 687, a bill of exceptions was taken to the refusal of the court to permit the accused to detail certain phases of his conduct subsequent to the offense; it being stated that he would testify that in the '¿y¡¡ years since the killing he has been engaged in providing for his family on his farm, and in doing certain work for the government, and that during said time he had been engaged in only legitimate occupations, and had not been in any trouble of any kind or character since the killing. It was insisted that the refusal of testimony of this kind so abridged the rights of the appellant and the probability of his obtaining a suspended sentence at the hands of the jury as to require a reversal of the judgment. We held that testimony of that character is not made-admissible by the suspended sentence law, and would not go to establish the reputation of the appellant. In Craven v. State (Tex. Cr. App.) 247 S. W. 515, we discussed the proposition that the accused was not entitled to complain here because of the rejection of testimony to show that he was of weak mind, such weakness not reaching the point where he would not know the difference between the right and wrong, of the act charged, and we upheld the lower court in rejecting such testimony. Many authorities are cited in the latter case mentioned, and the subject is gone into at some length.

More mature consideration of the questions involved herein but convinces us of the correctness of our ruling in the original opinion. It being admitted that one is of bad reputation for honesty and fair dealing at the time of the trial, we see no reason for admitting proof that at different times in his past life, and possibly in different communities, he has borne a different reputation from that now had by him at the time of the trial.

The motion for rehearing will be overruled. 
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