White v. State , 129 Tex. Crim. 59 ( 1935 )

Bill of exception number twenty-seven is set out in the opinion of Judge Lattimore and it is not necessary to copy it again. The first part of the bill shows that in the direct examination of a State's witness counsel for the State asked witness if he knew the general reputation of appellant as a bootlegger. The court sustained objection to the question and stated at the time that is was not a proper question because appellant's reputation was not in issue. The balance of the bill relates to the reasons urged by the district attorney as to why he thought the evidence admissible. The bill does not show that any objection was urged to the statement of the district attorney. In other words, the trial court seems not to have been called on to make any ruling on that matter. It does appear from the recitals in the bill that counsel for the State thought that because it was the theory that appellant was a bootlegger, one motive for the killing was to remove Milton as a competitor. If the circumstances had justified the State in proving that Milton was a bootlegger — and this is not conceded — the State could not have established it by proving such to be his general reputation, and his reputation in that regard had in no way been put in issue. The trial court recognized the question as improper, and so ruled. So the question squarely before us is to say; what was the effect of the question, regardless of the court's action in sustaining the objection to it, and stating — presumably in the jury's presence — that the question was improper? Under the circumstances this court is not justified in holding the error harmless. It is an incident to be regretted, yet a distinction cannot properly be drawn between the present case and Childress v. State, 92 Tex. Crim. 215,241 S.W. 1029; Harrison v. State, 102 Tex. Crim. 385,278 S.W. 430; Farar v. State, 112 Tex.Crim. Rep.,15 S.W.2d 1050; Day v. State, 117 Tex.Crim. Rep.,34 S.W.2d 871; Coon v. State, 117 Tex.Crim. Rep.,35 S.W.2d 419; Wall v. State, 117 Tex.Crim. Rep.,37 S.W.2d 750; Long v. State, 119 Tex.Crim. Rep.,43 S.W.2d 932; Hollingsworth v. State, 122 Tex. Crim. 545,56 S.W.2d 869. In the Childress case (supra) we said: "We frequently decline to reverse cases where improper questions were asked and objections were promptly sustained; but we can scarcely conceive a question which in and of itself could be more hurtful to an accused than one calling for an answer which would put in issue his general reputation. It places him in the unfortunate attitude of having to let the question pass unchallenged, thereby permitting the State to do what it plainly has no right to do, or of objecting thereto in the presence of the jury, leaving the very natural impression upon them that he feared an answer would have been detrimental to him."

In Farar's case (supra) the language in the Childress opinion was quoted with approval. In Coon's case (supra) the holding in Childress' case (supra) was approved, and the court said: "We cannot gauge the evil effect upon the jury of such improper question. The appellant was not given the lowest penalty."

In Long's case (supra) de declined to reverse, assigning our reasons in the following language: "If there had been an issue drawn by the evidence as to the possession by appellant of the whisky for an innocent purpose, or if he had received punishment above the minimum, this court would unhesitatingly have reversed the judgment because of the error shown by bill of exception number one. However, no issue was made in the evidence of the purpose for which appellant possessed the whisky. Art. 671, P. C. makes proof of the possession of more than a quart of intoxicating liquor prima facie evidence of guilt. Appellant introduced no evidence showing the legality of such possession. Under the circumstances, the jury could do nothing less than find appellant guilty, and, having assessed the lowest punishment, we feel unauthorized to reverse, notwithstanding the error pointed out."

The trial court ruled that the question asked by the district attorney was improper. This court says it was wrong, but we are asked to hold it not hurtful in the face of a verdict for many years above the minimum. I cannot assent to the conclusion reached by my brethren on the point mentioned, and respectfully note my dissent.

ON MOTION FOR REHEARING.