The opinion
ON REHEARING.
May 3, 1922.
HAWKINS, Judge.
—Appellant insists that we were in error i» holding the testimony of A. H. Bracken to have been admissible upon the issue of suspended sentence. We fully realized the importance of this testimony and its harmful character, and the question gave us no little concern in considering the case upon original submission. The same question has had our attention in other cases before us since this motion for rehearing was tiled. After a careful reconsideration we have reached the conclusion that we were in error in holding this testimony admissible. Unfortunately the decisions relating to proper evidence to be received upon the issue of suspended sentence cannot be harmonized, and in order, if possible, to make clear the view of this court with reference to the matter we state here the reasons which have led us to conclude we were in error with reference to the matter we state here the reasons which have led us to conclude we were in error with reference to Bracken’s testimony. We quote the first portion of Article 865C, C. C. P., relative to suspended sentence, as follows:
“The court shall permit testimony and submit the question as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence.”
In Williamson v. State, 74 Texas Grim. Reports, 289, the general rules with reference to the admission of testimony upon the issue of suspended sentence were stated, and announced the proposition that when an application therefor was filed by a defendant that he thereby placed his general reputation as a peaceable, law-abiding citizen in issue. With the general rules and proposition so announced we are in accord. We desire, however, to call attention to one matter in the Williamson case, the correctness of which we question, and which we think has led to some confusion. On cross-examination of Williamson he was asked if he had not been arrested as many as a dozen times. He admitted that he had been arrested three or four times, and had been in the city jail on more than one occasion. He objected to this testimony because on those occasions he was charged with misdemeanors. Later on in the opinion, is found this language.
“While
all
evidence objected to was admissible to enable the jury to determine whether they would suspend punishment for the offense committed in case they found him guilty ... it was not admissible as affecting the credit of defendant as a witness.”
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In so far as the language quoted might appear to authorize the State to show as original evidence that he had been arrested on other occasions for misdemeanors and had been in jail as bearing on suspended sentence, we question its correctness, as not being in harmony with the general rule as to proving “general reputation.”
In Baker v. State, 87 Texas Crim. Rep., 305 , 221 S. W. Rep., 607 , will be found the following language:
“The suspended sentence law . . . opens the way for the State to” prove the general reputation of the accused where the issue of suspended sentence is presented by him. The method of proving general reputation, and the limitation incident to it were understood at the time the statute was enacted and we find nothing in the law indicative of a purpose on the part of the legislature to change these rules. Prior to the passage of the statute (suspended sentence law) the reputation of one accused of crime was a subject upon which the State was not permitted to introduce evidence unless invited by the accused. The statute mentioned extends the invitation. The reputation is to be proved,
not by specific acts of misconduct
but by competent evidence to show whether his reputation is good or bad.”
Prior to the enactment of the suspended sentence law the general reputation of accused, when investigation thereof was invited by himself, was limited to the particular trait of character then under investigation. This is not true under the suspended sentence law. Whenever that issue is raised by filing an application for suspended sentence then an inquiry as to the general reputation of accused as to being a peaceable, law-abiding citizen becomes pertient as proper for the jury to know whether he is the kind of man who would be entitled to have such clemency as he requests, but the proof of
general reputation
must be made in accordance with the well established rules. In order that there may be
no
further confusion with reference to proper proof of
general reputation
incident to the issue of suspended sentence it will be well to refer to some of the text writers upon the subject. Mr. Wigmore in Vol. 1, Sec. 193, discussing whether particular acts of misconduct on the issue of general reputation are admissible, says:
“This last sort of evidence is now to be considered. The law here declares a general and absolute rule of exclusion. It is forbidden in showing that the defendant has not the good character which he affirms, to resort to particular acts of misconduct by him.”
Wharton’s Criminal Evidence, 10th Edition, Vol. 1, Section 61, reads:
“When a defendant has voluntarily put his character in issue, it is not competent nor relevant to the issue, to admit in rebuttal on the part of the prosecution evidence of a series of independent facts, each forming a constituent offense. Rebutting evidence of bad reputation is however always admissible.”
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■
Underhill, Section 81, states the rule as follows:
‘ ‘ Character, i. e., the general reputation which the accused possesses and enjoys among his acquaintances may be shown by the testimony of such persons only. The witness is not competent unless it is first shown that he knows such reputation which must be that current in the neighborhood where both he and accused reside.”
Section 82 reads:
“Evidence of specific acts of bad conduct is not admissible to show bad character.
The accused may always be prepared to meet an attack on his general character, but can not fairly be required, without notice, to controvert particular facts. But a witness to good character may be asked on cross-examination whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove, and generally as to the grounds of his evidence, not so much to establish the truth of such facts or'charges, as to test his credibility.”
The rules relative to proving general reputation as announced by the foregoing text writers have been recognized in too many eases from this court to require reference, and were well known to the Legislature at the time the suspended sentence law was passed and there is nothing in that law to indicate that the Legislature intended or desired to establish any different rule. There is also found in Section 81 of Underhill the following language:
“Evidence of good actions of the accused is not admissible to prove his good reputation. ’ ’
This rule as it applies to the suspended sentence law has been fol-i owed in Wagley v. State, 87 Texas Crim. Rep., 504 , 224 S. W. Rep., 687 , and in Brown v. State (opinion April 12th, 1922), where it was specifically held by us that the defendant had no right on the issue of suspended sentence to prove as original evidence that he had never before been arrested as showing his good character. Of necéssity accused must show he has never been convicted of a felony to avail himself of the plea at all, and the State may likewise defeat the plea by proof that he has been so convicted. In Moore v. State, 237 S. W. Rep., 932 , and Fountain v. State (opinion December 21st, 1921), we held that specific acts of misconduct were not properly provable by the State on the issue of suspended sentence. We are not discussing evidence elicited on cross-examination of an accused who may have filed an application for suspended sentence with reference to offenses of which he may have been convicted or legally charged involving moral turpitude as affecting his credibility as a witness. Neither do we intend to convey the idea that upon the cross-examination of witnesses who may be called by him to establish his good reputation that they may not be interrogated as to their knowledge or information, with reference to specific acts of misconduct of accused affecting the weight of their testimony in his behalf. What we desire to impress is,
*591
that when accused undertakes to support, or the State to attack his “general.reputation,” it must be done in the same manner, be governed by the same rules, and subject to the same exceptions, where the suspended sentence is involved, as in other cases. In the instant case while appellant was on the stand he was asked by his counsel if he had ever been convicted of a felony. It was necessary that this proof be made in order that his application for suspended sentence be submitted to the jury at all. He replied to that auestion that he had not been, and then injected a matter not responsive to the question, that he had never been arrested at any time. We based our original opinion on the proposition that this issue having been iniected by appellant then the State had á right to meet it by the testimony of Bracken. In this we believe we were in error, having reached the conclusion in Brown v. State (supra) that appellant had no right upon the issue of his general reputation to show that he had never been arrested. It became the duty of the State when that issue was injected by appellant in the instant case to have ohie'eted thereto, or move that the same be stricken from the record. Having permitted this illegal testimony to get into the record without obiection the State could not under the guise of rebutting it introduce other illegal evidence over obiection of appellant. Zimmer v. State, 14 Texas Crim. Rep., 114 ; Smith v. State, 52 Texas Crim. Rep., 32 . We recognized in our original opinion the correctness of the general rules .announced in the cases of Williamson, Baker and Wagley (supra) hut based the opinion upon what we conceived at the time to be an exception similar to that in the Baker case. A closer analysis of that opinion discloses that the apparent exception came about incident to the cross-examination of the witness Ratliff who had testi^ed to the good reputation of defendant. Upon his cross-examination certain facts were elicited which seems to have made pertinent the testimony about which the defendant there complained. As suggested bv appellant in.his motion for rehearing in the instant case, if the witness Bracken could have qualified as to knowledge of appellant’s general reputation he might have been asked by the State if it was good or bad, and if he answered that the same was bad then appellant on cross-examination might have inquired into his reasons, but we have concluded that the State ought not to have been permitted to prove by Bracken the facts elicited from him as original evidence which were with reference to an isolated transaction, and perhaps showed misconduct on the part of appellant, but which, as heretofore shown, could not be done as affecting his general reputation. There can be no question but that this testimony was exceedingly harmful under the circumstances, furnishing a somewhat similar occurrence to that in which Mr. Yarbrough came to. his death at the hands of appellant.
Believing ourselves to have fallen into error, the motion for re
*592
hearing is granted, the judgment of affirmance set aside, and the judgment of the trial court reversed and the cause remanded.
Reversed and remanded.