Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of three years; hence this appeal.
Appellant objected to the testimony of Charley Myers, to the effect that appellant, on the evening of the homicide, and shortly before the same occurred, stated to him, in the store, that no man could beat him (defendant) out of $50 and live. That he would kill him before he got home. This testimony was objected to, on the ground that defendant mentioned no names in connection with said statement, and that, consequently, said statement did not relate to deceased, and was irrelevant and immaterial. The bill does not state that these were all the facts attending the introduction of said evidence, so as to show that the court erred in admitting the same. There is other testimony *Page 307 tending to show that appellant alluded to deceased when he made this remark. One witness — Frank Dunklin — testifies directly that he made the same remark to him concerning a settlement with Goolsby, deceased. Looking at the record, there is no question but that the remark referred distinctly to deceased.
After the State had rested the case on purely circumstantial evidence, appellant requested the court to require the State to put W.M. Harding on the stand, who was an eyewitness to the transaction, insisting that where there was an eyewitness, the State was required to place such eyewitness on the stand. In this connection we are referred to Thompson v. State, 30 Texas Crim. App., 325. The doctrine announced in that case was discussed in McCandless v. State, 42 Tex.Crim. Rep., and the views therein announced were seriously questioned. However, the court explains the bill of exceptions, showing that appellant confessed the act of killing, which has been held by this court to be positive evidence. Furthermore, the court stated that the eyewitness was a brother-in-law of appellant, and was unfriendly to the State, and, besides, had previously testified he was so drunk at the time that he knew nothing about the facts of the case. We do not believe the court erred in this matter.
Appellant put his character in issue as being a good, quiet, peaceable and law abiding citizen. During the cross examination of appellant's witnesses, the State was permitted to prove by them that they had heard defendant had been sent to the penitentiary for theft of cattle; that it had been discussed in the neighborhood where witnesses and defendant lived, when his reputation was being discussed. This was objected to on the ground that it was immaterial and irrelevant to any issue in the case, and did not tend to prove or disprove whether defendant's reputation as a quiet and peaceable citizen was good. Of course, it was not competent for the State originally to put appellant's reputation in issue; but, he having done so, it was proper, on cross-examination of his witnesses, to prove by them particular acts of misconduct; or, where the proof was of general reputation on the part of appellant, that the witnesses had heard of particular acts of misconduct. Rice's Crim. Ev., p. 603, citing State v. Merriman, 34 S.C. 16.
We do not believe the court erred in charging on temporary insanity, caused by the recent use of ardent spirits, as there was evidence tending to show that appellant was under the influence of liquor at the time of the homicide.
The following portion of the court's charge is also complained of as erroneous: "The evidence before you relative to defendant having served a term in the penitentiary can only be considered by you as affecting defendant's reputation as a good citizen, and you will consider the same for no other purpose whatsoever." This is objected to on the ground that such testimony could only be considered with reference to the credibility of appellant. The testimony does not appear, from the *Page 308 record, to have been introduced for this purpose, but merely in cross-examination of appellant's witnesses as to his character, which he placed in issue. However, it was not competent for the court to submit appellant's character as a good citizen to the jury, as was done in the above charge. It was a charge on the weight of the evidence, and was calling the attention of the jury directly to appellant's character as a good citizen, without even undertaking to tell the jury for what purpose they could consider his character as a good or bad citizen. This testimony, pro and con, was before the jury, and like other testimony, they could consider it for what it was worth, as shedding light on the transaction, and as indicating whether or not a person of the character of appellant was shown to have borne, would likely commit the offense charged against him. But it was not proper for the court to call attention to this matter, and thus to emphasize and make prominent the fact that there was evidence showing appellant had been in the penitentiary. For this reason, the judgment is reversed and the cause remanded.
Reversed and remanded.