DocketNumber: No. 13794.
Citation Numbers: 37 S.W.2d 750, 117 Tex. Crim. 327
Judges: HAWKINS, JUDGE. —
Filed Date: 12/17/1930
Status: Precedential
Modified Date: 1/13/2023
The State's witnesses made out a case of the sale of whisky. L. A. Wall, the father of appellant, testified to an alibi for him, claiming that appellant was at the time of the alleged sale sick in bed with the "flu."
Bills of exception Nos. 1, 2, 3 and 5 complain of the State's cross-examination of the witness in some particulars. We think bill of exception No. 5 presents error. A discussion of the other bills is pretermitted.
Bill of exception No. 5 shows that while L. A. Wall was being cross-examined and after he had testified that appellant had worked some in different places at such work as he could get he was then asked by State's counsel the following question. "You know he had the reputation of being a bootlegger didn't you?" The bill recites that appellant's objection to the question was sustained by the court and the jury instructed not to consider the question nor the answer of the witness. The answer of the witness, if any, is not set out in the bill. That the State had no right to make any such proof as the question was intended to elicit is definitely decided in Burns v. State,
In the present case, even though appellant may have put his general reputation in issue as to truth and veracity, or as a law-abiding citizen, (which it is discoverable from the record he did not do) the State had no right to ask the question it did, and any kind of an objection would reach it. Appellant was put in the embarrassing attitude suggested in the quotation from the opinion in the Childress case. See also Harrison v. State, 102 Tex.Crim. Rep.,
In the present case punishment was assessed at more than the minimum. As was said in the Harrison case, supra, with reference to an argument, it is impossible for us to know to what extent the improper *Page 330 question contributed to this result. We can not say from the record that it did not contribute to it.
The motion for rehearing should be granted, the judgment of affirmance set aside and the judgment of the trial court reversed and the cause remanded, and it is so ordered.
Granted.
Gothard v. State , 94 Tex. Crim. 538 ( 1923 )
Mitchell v. State , 116 Tex. Crim. 249 ( 1930 )
Lovelady v. State , 95 Tex. Crim. 571 ( 1923 )
Harrison v. State , 102 Tex. Crim. 385 ( 1925 )
Childress v. State , 92 Tex. Crim. 215 ( 1922 )
Burns v. State , 94 Tex. Crim. 533 ( 1923 )