
    EAST v. STATE.
    (No. 10822.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    1. Criminal law <&wkey;982 — On application fpr suspended sentence permitting state to ask witnesses as to defendant’s reputation, if they had heard of defendant’s attacking certain person, held not error.
    In prosecution for killing, in which defendant applied for suspended sentence and proved good reputation as to being peaceful, quiet, and law-abiding citizen, and as to truth and veracity, permitting state on cross-examination to ask his witnesses if they had not heard that defendant had assaulted one-armed person, which they denied, was not error.
    2. Criminal law &wkey;>982 — On application for suspended sentence, permitting state to prove defendant’s prior assault on cripple held error.
    In prosecution for killing, defendant’s application for suspended sentence put his general reputation in issue, and permitting state to prove, in rebuttal of defendant’s testimony, that witness was present when defendant had quarrel with and struck one-armed person, was error; it being incompetent and irrelevant to rebut defendant’s good reputation.
    3. Criminal law <&wkey;982 — On application for suspended sentence, evidence of bad reputation is admissible to rebut defendant’s evidence of good reputation.
    In prosecution for killing, on application for suspended sentence, evidence of bad reputation is admissible to rebut defendant’s evidence of good reputation.
    4. Criminal law <®=>380 — Evidence of specific bad conduct is not admissible to show bad character.
    Evidence of specific acts of bad conduct is not admissible to show bad character.
    5. Homicide <&wkey;290 — Refusal to Instruct, if instrument used was not likely to produce death, it was not presumed that death was designed unless manner of use showed such intent, held error (Pen. Code 1925* art. 1261).
    Under Pen. Code 1925, art. 1261, in prosecution for killing, where nothing showed deadly character of knife used, refusal to instruct that, if instrument used was not likely to produce death, it was not to be presumed that death was designed unless in manner of use such intention evidently appeared, was error.
    6. Criminal law <&wkey;829(l) — In prosecution for killing, refusal of instruction covered by more liberal charge of court held not error.
    In prosecution for killing, refusal of requested charge covered by court’s charge which was more liberal as to defendant was not error.
    Commissioners’ Decision.
    Appeal from District Court, Upshur County ; J. R. Warren, Judge.
    Jim Bast was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Florence & Florence, of Gilmer, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted for the offense of manslaughter, and his punishment assessed at four years in the penitentiary.

Appellant killed L. T. Albright by cutting-him with a knife. The killing occurred on. Sunday, June 20, 1926, at the home of Mr. Allie Greer. Appellant was a stepbrother of deceased. The appellant and deceased and some four or five other boys were together near a workbench, laughing, and talking, and “hurrahing” each other. One of the-party told appellant that deceased had said that he (appellant) had not had a bath in more than 20 years, and that when he got out of bed every morning he had mud between his toes. Appellant made the statement that whoever said that was a “Goddamned liar and a damn son of a bitch.”One of the boys in the party ashed deceased if he was going to take that, and deceased replied that appellant was a “damned son of a bitch and a bastard.” When this was said, appellant advanced upon deceased; deceased backed back, and picked up a stick, and struck appellant on the arm, breaking the skin. Appellant choked deceased and took the stick away from him. Deceased staggered back some few steps and fell to the ground, exclaiming; “I am cut.” In a moment or two appellant picked deceased up in his arms and carried him a short distance to the house and laid him on the gallery. Appellant asked some of the boys to summon a doctor. Deceased lingered about three months and died.

Appellant defended on the ground of self-defense, and also contended that he did not know that he had cut the deceased; that if he cut him he did so in an effort to prevent deceased from striking him with the stick or plank, which was a 1x4 about 2% feet long. In view of the disposition of this case, it will not be necessary for us to discuss bills of exception Nos. 1 and 2. I

Bill of exception No. 3 complains that after appellant had proved- by a number of witnesses that his reputation as to being a peaceful, quiet, law-abiding citizen, and as to truth and veracity, was good, that the state, upon cross-examination, asked said witnesses if they had not heard .about appellant assaulting “one-armed Bill Maddox;” to which each witness answered in the negative. .The inquiry up to this point was permissible in cross-examination of the witnesses who vouched for appellant’s good • character.

Appellant further complains that while he was upon the witness stand in his own behalf he was asked, upon his examination in chief, and then upon cross-examination, if he had not, on an occasion at Pull' Tight, a little store operated by Jim Maddox, assaulted “one-armed Bill Maddox,” to which appellant answered, upon both occasions, that he did not assault Bill Maddox and did not strike him; that the state was then permitted to prove by Bert Harrell, in rebuttal, and upon examination in chief, and after said witness had testified that he was acquainted with appellant’s general reputation for peace and quietude and that said reputation was bad, that he, said witness, was at Pull Tight on the occasion when the appellant had a difficulty with “one-armed Bill Maddox,” and that at that time he saw the appellant hit Bill Maddox. This testimony was objected to by the appellant because the same was immaterial, irrelevant, and prejudicial to his rights because same was proof of a separate act and not in rebuttal of appellant’s general reputation, and further because said testimony was an attempt to impeach him upon an immaterial and collateral issue.

In our opinion, the' court fell into error in permitting the state to make this proof. The appellant had filed an application for a suspended sentence. This put. his general reputation in issue, and it was not competent nor relevant to the issue to allow the state to rebut his good reputation by proof of a separate and distinct offense, to¡ wit, the assault upon “one-armed Bill Maddox.” The state could have rebutted appellant’s good reputation by evidence of bad reputation. Evidence of specific acts of bad conduct is not admissible to show bad character. “Evidence of good actions of- the accused is not admissible to prove his good reputation.” Johnson v. State, 91 Tex. Cr. R. 582, 241 S. W. 484.

Appellant, in his third exception to -the court’s main charge, excepted to paragraph 7 of same because the court did not require the jury to find that the appellant used a deadly weapon in the commission of the offense, and further objected to said paragraph because the court did not therein instruct the jury with reference to the means used, and suggested the following charge' should have been given:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging the intent of the defendant, and if the instrument be one not likely to produce death, it is not to he presumed that death was designed, unless from the manner in which it was used such intention evidently appears.”

It is our opinion, under the facts and. circumstances of this case, that the court should have given either the above-quoted charge or some other instruction involving this principle of law, as is required under article 1261, Penal Code 1925. There is nothing in the record showing the deadly character of the knife used by appellant, and, this being true, he is entitled to have the question of intent presented as an issue to the jury. Griffin v. State, 40 Tex. Cr. R. 312, 50 S. W. 366, 76 Am. St. Rep. 718.

Appellant, in his fifth objection to the court’s charge, complains that paragraph 8 of same does not affirmatively submit his theory of the case, but submits same in a1 disjunctive manner, and'further because said' paragraph of said charge does not fully cover appellant’s defense, and' suggests that the court instruct the jury in accordance with a suggested charge set' out in said objection. We are unable to agree with appellant’s contention. Prom a careful reading of paragraph 8 of the learned trial judge’s main charge, we find that same very ably and fairly submits affirmatively appellant’s theory of the case, and, in our judgment, is as more liberal charge for the appellant than the one suggested.

Por the reasons above set out, the judgment of the trial court is 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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