
    GOSS v. STATE.
    (No. 10147.)
    (Court of Criminal Appeals of Texas.
    May 26, 1926.)
    1. Criminal law &wkey;>419, 420(1).
    Permitting state to ask defendant’s character witnesses, on cross-examination, if they had not heard about accused drawing pistol and shooting deceased about date named in indictment held objectionable as attempting to prove the offense by hearsay evidence.
    2. Criminal law &wkey;>448(7).
    Testimony of accused that from direction his pistol pointed, if shot had gone straight, it would not have hit deceased, held properly excluded as calling for conclusion.
    3. Criminal law i&wkey; 1170(4) — Refusal to let accused testify he did not shoot toward boy he killed held not error, where he testified • he shot in different direction.
    Refusal to let accused, who had discharged pistol and killed boy on truck, to testify that he did not point pistol toward car or shoot toward boy held not error, where he testified that he shot in different direction from that of truck and deceased.
    4. Homicide &wkey;>!74(6) — Where accused admitted firing fatal shot, and there was no controversy as to pistol used, testimony that he owned several pistols wais irrelevant.
    In murder' prosecution, where accused admitted firing fatal shot, and there was no controversy as to where he shot deceased, or as to pistol used, testimony that he owned several pistols, and their description, held inadmissible as irrelevant.
    5. Criminal law <&wkey;338(l) — That state, in murder prosecution, was permitted to prove by witness that hearing shot made her nervous was error.
    That state, in murder prosecution, was permitted to prove by witness, who lived 75 yards from place of shooting, that shooting made her nervous was error.
    ©::»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
    
      6. Criminal law <&wkey;982i-Cross-.examination of character witness, involving individual knowledge of specific acts of accused, was error, notwithstanding suspended sentence had been applied for.
    In murder prosecution, notwithstanding suspended sentence had been applied for, cross-examination of character witness for accused as to his carrying of firearms on different occasions was error, since they involved specific acts and conduct.
    7. Criminal law &wkey;>380.
    On examination in chief of character witness, specific acts cannot be shown to show good or bad reputation.
    8. Witnesses <&wkey;274(l).
    Character witness cannot be cross-examined as to his individual knowledge about specific or particular acts or conduct of accused.
    9. Witnesses <&wkey;274(2).
    Character witness can be asked if he has not heard of instances of misconduct by accused which go to affect weight of witness’ testimony.
    10. Homicide <&wkey;307(2) — Refusal to charge on negligent homicide in second degree held error, in view of evidence.
    Where accused, who was riding in automobile, after passing truck, discharged pistol, and killed person riding in truck, and, on trial, contended truck had been back-firing, and under belief that men in truck were shooting for fun, he discharged pistol in different direction from truck without intention to hit any one, refusal to charge on negligent homicide in second degree was error.
    <&^>For other cases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Fannin County; George P. Blackburn, Judge.
    S. E. Goss was convicted of murder, and be appeals.
    Reversed and remanded.
    Cunningham & Lipscomb, of Bonham, for appellant.
    Wyatt J. Baldwin, Dist. Atty., of Paris, Wheeler & Leslie, of Bonham, Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BAKER, J.

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

Briefly stated, the record discloses that on the 14th day of September, 1925, the appellant, while driving in his automobile in company with his wife, his small' son, a Mr. Robinson and a Mr. Roach, going from Bonham to Dodd City, overtook and passed, on the public highway, a truck in which J. H. Wilson, Wm. Melton, Glenwood Culbeth, -and Claude Rainey, the deceased, were riding. The deceased, Claude Rainey, was standing on the running board of the truck, and, after the appellant, who, it appears, was riding on the back seat of his automobile, passed said truck, he discharged his pistol, and the bullet struck Claude Rainey, deceased, near the right nipple, from the effects of which he died a few hours later. The' undisputed testimony discloses that there had existed no hard feelings between appellant and the deceased prior to the homicide. It was the contention of the state that the appellant deliberately and intentionally shot the deceased, and under such circumstances as would render him guilty of murder. The appellant defended upon the ground that the truck was back-firing about the time, or prior to the time, of his passing, and he thought the young men in the truck were shooting for the purpose of having some fun, and laboring under said belief, he discharged his pistol in a different direction from the truck and without any intention of hitting any one in the truck, and in a spirit of fun, and that he did not know that he had shot deceased for some time thereafter.

We find that the record contains 27 bills of exception, in which there are many complaints urged to the admission and rejection of testimony ánd to the court’s charge, the number of which precludes us from discussing each and all of said bills separately.

Bills of exception Nos. 2 and 14, which complain of the action of the court in refusing to continue this case, and to grant a new trial, because of the sickness of one of the jurors, pass out of the case from the disposition we have made of it, which ’ renders a discussion of said questions unnecessary.

Matters complained of in bill No. 3 are not likely to arise upon another trial, and for that reason are not discussed.

Bills 4 and 5 complain of the action of the court in permitting the state, after the witnesses Carson and Roden had testified in chief to appellant’s good reputation, to ask said witnesses, on cross-examination, if they had not heard about appellant whipping out a .45 special Smith & Wesson double-action pistol, and shooting Claude Rainey, deceased, about the 14th day of September, 1925. The appellant urged, and contends before this court, among other objections, that the court was permitting the state to prove the offense for which he was being tried by hearsay evidence. The court-qualifies this bill by stating that the appellant had applied for a suspended sentence, and put his reputation in issue up to the date of the trial, and that said testimony was admissible to show the. proper weight and credibility to -be given to the witnesses’ testimony in chief. We think the action of the court in this instance was clearly erroneous, and we can conceive of no rule upon which this testimony would be admissible under any circumstances.

Bills of exception Nos. 7,11, and 13, as qualified by the court, show no error.

Bill No. 8 complains of the refusal of the court to permit the appellant, on direct examination, to testify that from the direction his pistol pointed, if the shot had gone straight, it would not have hit the deceased in the truck, and to the alleged failure of the court to let him testify that he did not point the pistol toward the car or shoot toward the boys in the- truck. The court qualifies this bill by showing that the first question called for a conclusion, and the objection of the state thereto was sustained on that account, and as to the second question the witness testified without objection that he shot in a different direction from that of the truck and . the deceased. As qualified, this bill shows no error.

Bill No. 9 complains of the action of the court in permitting the state, on cross-examination, to prove by the appellant that he owned three different pistols, having him to describe same. The court qualifies this bill by stating that the defendant admitted firing the fatal shot, but claimed that he fired it in fun, and with no intention of hitting the deceased, and that said testimony as to the number of pistols owned by him was admitted as going to the issue of whether or not he intended to shoot the deceased when he fired the pistol in question. We think the court was in error in admitting this testimony, as appellant admitted firing the fatal shot, and there was no controversy as to where he shot deceased or as to the pistol used, and we fail to see any relevancy in the testimony as to the number of pistols owned by him. Hightower v. State (Tex. Cr. App.) 281 S. W. 1063.

In bill No. 10 complaint is made to the action of the court in permitting the state, over appellant’s objection, to prove by Mrs. Barnett, who, the record shows, lived about 75 yards from the place of the shooting, that the shooting made her nervous. We fail to see how the appellant can be bound by the effects of hearing this shot on a third 'party, under any circumstances shown in this bill, and think the court was in error in admitting same.

In bill of exception No. 6 complaint is made to the action of the court in permitting the state, on cross-examination of the witness, Shope, after he had testified to the good reputation of the appellant as being a peaceable, quiet, law-abiding, citizen, to ask the witness if it were not a fact that the appellant carried a six-shooter all the time, every day and every time the witness saw him, to which the witness answered, “No, sir.” Then the state was permitted to ask the witness, “I will ask you if numbers of times, if you don’t know that to be a fact,” to which the witness answered in the affirmative. To both of said questions and answers the appellant objected because same were asking about offenses not' involving moral turpitude, and, defendant’s general reputation alone being the issue that could properly be before the jury, it was improper to inquire into specific transactions known by the witness relative .thereto on cross- examination. The court, in qualifying this bill, states that, a suspended sentence having been applied for, this placed the question of appellant’s reputation in issue up to the time of the trial, and the evidence was proper to go to the weight and credibility of the testimony of the witness Shope. We think the court was in error in admitting this testimony involving specific acts and conduct of the appellant known by said witness for the purpose of attempting to rebut the testimony in chief of this witness on the general reputation of appellant for good character, and that said cross-examination should have been confined, not to specific acts and conduct known to said witness, but to what he had heard stated, if anything, about said specific acts. General reputation is confined solely to what people generally think, and state about it, and it is not permitted, on an examination of the witness in chief, to show specific acts in order to show good or bad reputation, neither do we think it is permissible, on cross-examination, to show by the witness what he knows individually about specific or particular acts or conduct of the accused, because this would do violence to the principle upon which testimony on character and reputation is based, and, as has been said by eminent writers, to do so would unnecessarily extend the length of the trial, since 'it would require or call for testimony on the part of the accused to refute and rebut such testimony of specific acts, and would do violence to the proposition that the accused is presumed to know, and be prepared to answer upon trial, what the public knows generally, but is not supposed to know, and be ready to answer, specific acts, charges, and conduct involving matters other than that which he is called to answer upon trial.

Underhill on Criminal Evidence (3d Ed.) § 141, pp. 181, 182, states:

“Evidence of good or bad character is restricted to general reputation, and does not extend to particulars. It is error to permit a character witness to be cross-examined as to his own knowledge of particular acts of bad conduct by accused.”

In the case of State v. Roderick, rendered by the Supreme Court of Ohio, 14 L. R. A. (N. S.) 740, note 7, in discussing this subject, it is stated:

“But, while it is permissible to cross-examine witnesses who testify in chief to a person’s character, .as to any reports or rumors that may have reached their ears of specific facts and particular instances of conduct inconsistent with the character attributed, the facts and conduct themselves are not allowed to be proved. The truth or falsity of the reports, charges, or rumors referred to cannot be established. The details of the transactions mentioned cannot be elicited. In short, character can no more be proved by proof of particular facts and specific acts on cross-examinations than it can on examinations_in chief,”

—citing many authorities from the Supreme' Courts of Alabama, Florida, Georgia, Iowa. Illinois, Kentucky, Massachusetts, Missouri, New Jersey, New York, Ohio, and Wisconsin.

Wigmore on Evidence, § 197, p. 242, holds to the same effect as the authorities, supra, and states in that connection:

' “Thus, the defendant’s misconduct is not inquired after as a fact to show his character;but as a rumor to,discredit the witness’ assertion. A question, therefore, which does not expressly refer to the witness’' hearing of the conduct as a rumor is improper because it aims apparently at the conduct as a fact showing the defendant’s character. Erecisely the same principle is applicable to cr.oss-examination of one testifying to a witness’ character.”

Also see 2 Wigmore on Evidence, § 9S8, where the same proposition is fully discussed as in the section, supra.

This court, in Rosamond v. State, 101 Tex. Cr. R. 815, 276 S. W. 247, on rehearing, speaking through Judge Hawkins, on this issue and the question of reputation, states:

“We observe nothing in the present case which would make inapplicable the rule that when a defendant has put in issue his general reputation that witnesses introduced by him to support it may not, for the purpose of throwing light upon the weight to be given their testimony, be asked if they had not heard of particular and specific acts upon the part of appellant which would be inconsistent with the character which the witnesses were called to prove.”

In Wright v. State, 98 Tex. Cr. R. 513, 516, 266 S. W. 783, 784, this court, speaking through Judge Hawkins, stated:

“Where a defendant puts his general reputation in issue, and .supports the same by witnesses who testify that they know such reputation, and know it to be good, the state is debarred from joining issue upon this question by proving specific acts of misconduct against defendant, but may ask a witness who has testified to good reputation if he has not heard of instances of misconduct upon defendant’s part which go to affect the weight of the witness’ testimony. * * * Much confusion had arisen with reference to this matter, especially as applied to cases where suspended sentence had been requested, and upon motion for ’ rehearing in Johnson v. State, 91 Tex. Cr. R. 582, 244 S. W. 484, we undertook to review the question at length, holding that proof of general reputation was subject to the same rules in cases where suspended sentence had been requested as where a defendant had placed his general reputation in issue.”

We are aware of the fact that there are cases by this court wherein it is stated, in substance, that on cross-examination of a character witness it is permissible to ask him relative to specific acts of misconduct bearing on the particular trait of character under investigation, but those cases, as we understand them, are where the court, in using said language, inadvertently does so, not with the thought or idea that the cross-examination can he extended to the knowledge of the witness of specific facts known to him, but only to such specific facts as he has heard discussed. We are also apprised of the fact that it is held in some courts outside of this state that on cross-examination it is permissible to prove by the witness specific facts of misconduct within his own knowledge, but we think the great weight of authority, and the reason therefor, is to the contrary.

Complaint is also made to‘ the refusal of the court to charge the jury on negligent homicide in the second degree. We think the facts of this case call for such a charge, and the court was in error in refusing to so instruct the jury.

We have examined all the bills of exception not discussed in this opinion, and find no reversible error shown therein.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM.

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