Boone v. State , 149 Tex. Crim. 476 ( 1945 )

The appellant was assessed a penalty of five years in the penitentiary on a charge of murder.

The evidence sufficiently supports the jury's verdict. A number of bills of exception are presented for our consideration, some of which will not be discussed for the reason that such complaints will likely not arise on another trial of the case.

In due time the appellant filed an application for a suspended sentence and presented six character witnesses. Each qualified to give evidence on the subject and stated that the accused bore a good reputation. On cross-examination the State sought to prove by each witness that he knew about the murder for which appellant was being tried, and that because of this murder his reputation had not been good after it was committed. Where application is made for suspended sentence it is proper for the State to cross-examine the character witnesses and to inquire of his reputation up to the time of trial, but the State is not permitted to utilize the offense charged in the indictment for the purpose of destroying that reputation. It is very evident what answer the district attorney expected to receive from the witnesses. If he had received the anticipated answer it would have been to the effect that the accused did not bear a good reputation since the commission of the offense for which he was charged. Some of the witnesses probably removed all possible error by their answers, but not so with all of them. The following questions and answers from Bill of Exception No. 4 are typical of others and we think they present error.

"Q: Had you heard about him killing Willis Hawes? A: Yes.

"Q: You still say his reputation for being a peaceful and law abiding citizen is good? A: Yes, his reputation was good.

"Q: Just up to that time is what you mean? A: Yes."

The appellant has filed an exhaustive brief treating many of the decisions of this court on the subject, all of which have been reviewed and considered in this appeal. Likewise, the district attorney has filed a very ingenious brief discussing the authorities and making the contention that there is no error because the answers given by the witnesses do not affirmatively say that his reputation had become bad from and after the murder alleged. This, in our opinion, would be rather a strained construction. A more reasonable view is that the witnesses said it was good up to that time and left an inference, almost as if spoken words, that it was not good thereafter. Even when viewed as the district attorney has presented it, this would result in taking from appellant the evidence concerning his reputation from the time of the killing to the trial. To do so the State would be utilizing the offense for which he was being tried. It was based on the murder as the cause of the end of his good reputation and the beginning of the inferred bad reputation. If one such cross examination is error, the repetitions as found in other bills with other witnesses serve to give emphasis to the fact that the indictment or the circumstances of the homicide were such as to change the attitude of the people in the community. They added fuel to the flame. In addition to the dangers pointed out in Stephens v. State, 80 S.W.2d 980, Section 3, we think that it would be bringing into the case evidence of the judgment of the people regarding the very case for which the party was on trial. This would open the door and would be a means by which the State would be able to prove that the people of the community generally viewed the offense with disapproval. The judgment of the people relative to the merits of a transaction is not proper evidence for the consideration of the jury. It requires no serious consideration to see the harmful results from this type of cross-examination of character witnesses.

As observed, there are other bills of exception in the record which we are not discussing for the reason stated. However, it would appear proper to caution against such display of the widow and child of the deceased as indicated by the bills complaining of her presence in the court room. We cannot say that she had no right in the court room, or that the court abused its discretion in permitting her to remain in front of the bar rail. If her presence and her conduct there should be such as might inflame the minds of the jury it is perfectly reasonable to conclude that it would be error. Our failure to treat the other bills should not be considered as approving all of them.

For the error pointed out, the judgment of the trial court is reversed and the cause is remanded.

ON STATE'S MOTION FOR REHEARING.