
    GOTHARD v. STATE.
    (No. 7777.)
    (Court of Criminal Appeals of Texas.
    June 6, 1923.)
    1. Criminal law <&wkey;982 — Accused in liquor manufacturing prosecution held not entitled to benefit of suspended sentence law.
    In trial for manufacturing intoxicating liquor, where accused was more than 25 years old, he was not entitled to the benefit of the suspended sentence law (Vernon’s Ann. Code Or, Proc. 1916, art. 865b et seq.).
    2. Intoxicating liquors <&wkey;227— Reputation of accused for committing the offense for'which he is on trial held not admissible.
    In trial for manufacturing intoxicating liquor, where accused’s reputation was treated as an issue, held, that testimony as to his bad reputation in the community for making and selling intoxicating liquor was inadmissible.
    Appeal from District Oourt, Polk County; J. L. Manry, Judge.
    C. M. Gothard was convicted of manufacturing intoxicating liquor, and appeals.
    Reversed and remanded.
    S. F. Hill, of Livingston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Polk county of the offense of manufacturing intoxicating liquor, and his punishment fixed at confinement in the penitentiary for one year.

Appellant being more than 25 years of age, was not entitled to the benefit of the suspended sentence law in a case of this kind, and proceedings appropriate in a case where the accused is so entitled should not have been permitted.

By reason of the filing and presentation of an application for suspended sentence, the question of the good or bad reputation of appellant was treated as an issue in the ease. A number of witnesses both for the state and appellant wére permitted, over objection of the’accused, to testify that his reputation for making and selling intoxicating liquor was bad in the community in which he lived. This was manifestly a transgression of the rules applicable in any case where the question of reputation is properly raised. In a murder case, even if there arises a situation in which the general reputation of the accused for being a peaceable, law-abiding citizen becomes an issue, it would manifestly be improper to prove that his reputation for killing people is bad. So, likewise, in burglary cases, or theft cases, etc. "We are not-able to appreciate the extent of the harm which might have accrued from this violation of the rules. The testimony of a number of yyitnesses that the reputation of the accused was bad for doing the very thing involved in the charge against him would appear likely, to have much injurious weight with those sitting on the jury, trying- to solve the question as to whether it had been shown that he had done the thing for which he had such bad reputation.

Believing the state to have committed material error in the introduction of this testimony, our Assistant Attorney General has confessed error and we agree with him. The judgment will be reversed, and the cause remanded. 
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