Arthur v. State , 170 Tex. Crim. 161 ( 1960 )

339 S.W.2d 538 (1960)

Ella ARTHUR, Appellant,
v.
STATE of Texas, Appellee.

No. 32205.

Court of Criminal Appeals of Texas.

October 26, 1960.

Reeves & McDonald, by John B. McDonald, Plestine, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is murder; the punishment, 5 years.

Appellant, a negro woman 70 years of age, shot and killed her daughter-in-law, about 40 years of age. The killing occurred at appellant's home, and appellant's testimony raised the issue of self-defense.

Appellant filed motion for suspended sentence and offered a number of witnesses who testified to her good reputation as peaceable and law abiding.

Over appellant's objection, the State was permitted to introduce evidence from several witnesses that the reputation of the deceased for being a peaceable and inoffensive person was good.

There is no evidence suggesting any previous difficulty between appellant and the deceased, and no evidence that the deceased had at any previous time made threats against appellant.

It is never competent for the State in the first instance to prove that the person slain was peaceable and inoffensive. Such evidence becomes admissible in rebuttal when the opposite has been testified to in behalf of the defense, or when the defendant seeks to justify the homicide on the ground of threats made by the deceased. See Art. 1258, Vernon's Ann.P.C. and cases cited under Note 6; Pollard v. State, 119 Tex.Cr.R., 452, 45 S.W.2d 618; Keith v. State, 50 Tex. Crim. 63, 94 S.W. 1044; and Johnson v. State, 130 Tex. Crim. 596, 95 S.W.2d 968.

The judgment is reversed and the cause remanded.