Appellant had filed an application for suspended sentence, and introduced proof as to his general reputation as a peaceable, law-abiding citizen. While testifying as a witness in his own behalf the following questions on cross-examination were propounded to him by the district attorney:
Q. "You run over a girl down here near Starville?"
A. "No, sir."
Q. "On a horse?"
A. "No, sir."
Appellant objected on the ground that there was no violation of the law claimed, and that it was an effort on the part of the district attorney to inflame the minds of the jury against appellant and that the State had no evidence to support such questions or to follow them up. The court overruled the objection and the district attorney then followed his examination with this question:
Q. "Didn't you wilfully run over a girl down near Starville one night."
A. "No, sir."
Q. "Her name was Pinkston?"
A. "No, sir."
The defendant continued to object to such questions on the grounds as theretofore stated by him, and asked the court to withdraw the testimony from the jury, in reply to which the district attorney told the court to "Go ahead and withdraw it." The court in response to that remark from the district attorney said "Well, don't ask those questions unless you have a basis for them," to which the district attorney replied, "We have got a basis for them." Exception was then taken by appellant to the last remark of the district attorney on the ground that there was no witness present who would testify that defendant ran over a girl, and that the State was undertaking through the district attorney to prejudice the rights of defendant, and that he had no witnesses by which he could have followed up such inquiry. The court instructed the jury not to consider the questions propounded by the district attorney, but complaint is made of his conduct as being a studied effort calculated and intended to prejudice the jury against appellant's interest. Ordinarily where a question is propounded and answered in the negative we are not inclined to hold the mere asking of the question as error, but under the facts of this case as we gather them from the record we believe the conduct of the district attorney in the respect complained about should not be approved. He not only asked improper questions, but asserted the existence of facts hurtful to appellant. If he had a witness present by whom he could have proved that appellant ran over the girl, such evidence could have been tendered by the State only upon the issue of suspended sentence, and *Page 600 under recent holdings of this court it would have been inadmissible for that purpose, as being an isolated act of misconduct to which the State could not resort as original evidence to prove general reputation. See Johnson v. State, No. 6422 (this day decided); Wagley v. State, 87 Tex. Crim. 504, 224 S.W. Rep., 687; Moore v. State, 237 S.W. Rep., 932; Fountain v. State, (opinion December 21, 1921); Williamson v. State, 74 Tex.Crim. Rep.; Baker v. State, 87 Tex. Crim. 305, 221 S.W. Rep., 607. A misapprehension seems to have arisen with reference to the extent to which the State might go in proving specific acts of misconduct where the issue of suspended sentence arose and we have attempted to clear up this confusion by our opinions in the cases referred to. The general rule, as stated in the Johnson case (supra) may be stated as follows:
"When accused undertakes to support, or the State to attack, his general reputation, it must be done in the same manner, be governed by the same rules, and subject to the same exceptions, where the suspended sentence is involved as in other cases," and specifically holding that the State can not introduce evidence of specific acts of misconduct as original evidence on the issue of accused's general reputation. The questions propounded by counsel for the State in the instant case were improper and even had they elicted affirmative responses the evidence would have been inadmissible. We are unable to say to what extent such conduct may have influenced the jury in assessing the maximum penalty for the offense of manslaughter, and denying the suspended sentence.
In the light of the motion for rehearing we have re-examined appellant's bill of exception No. 2 in which he complains of certain conduct of the court. It appears from the bill that the special venire from which a jury was to be selected to try appellant was present on Monday morning in the court room that it was the custom of the judge on Monday morning before entering upon the trial of any case to give certain instructions to the jury relative to their duty as jurors. He advised them: first, that they must be careful and not separate but must remain together after they were taken on the jury; second, that the law prohibited the arriving at verdicts by lot; third, that hung juries were undesirable and mistrials expensive, but that he would not desire any juror to waive his conscientious belief about any case, but that the law required that they discuss the matters with each other and arrive at a verdict if possible; fourth, he instructed them generally that they should not comment on the failure of any defendant to testify and that attorneys were not permited to allude to the same in argument; he then proceeded, fifth, as follows:
"Next, I want to call your attention to the Suspended Sentence law. There has been quite a good deal of agitation for the repeal of this law, and perhaps it has been abused in a great many instances. In my judgment, this is a good law where properly applied. It was never intended to be used or made a vehicle to turn real criminals *Page 601 loose, who deliberately violated the law, and just as sure as the juries use this law recklessly, they will necessitate its repeal. I will illustrate it this way: it was intended to apply to young men and first offenders and to young men who accidentally got into trouble, who it appears, are not hardened criminals. However, the law does not say that this shall apply only to young men. There are cases where it would apply to old men. In all cases the jury are the sole judges as to whether the sentence be suspended."
To that portion of the general observations to the jury which are statutory in their nature, such as directing them not to comment on the failure of any defendant to testify, and admonishing them that they should not separate, we find no serious objections, because such matters might with propriety be embraced in the written charge if the trial judge thought it necessary to so instruct them. Under our system of procedure however, we seriously question the propriety of the judge at any time embarking upon a general discussion of any law which would be improper for him to embrace in a charge relative to the particular case on trial. It may be that the judge was of opinion that the suspended sentence law had been abused in many cases, but we believe he certainly stepped beyond the realms of propriety when he told the jury that "just as sure as the juries use this law recklessly, they will necessitate its repeal." He could not in any more definite way have given the jurors and veniremen present to understand that in his judgment extreme care should be exercised in extending the benefit of the law to any accused upon trial. Neither was it the province of the court to tell the jury that "the law was meant to apply to young men and first offenders and those who accidentally got into trouble." It is true he does tell them that the law does not say in terms that it shall apply only to young men, but he in effect told them in unmistakable language that in his judgment it was the purpose of the law not to extend its clemency to any except young men and those who might accidentally get into trouble. But the very terms of the suspended sentence law itself, in its exclusion and inclusion of the character of cases to which it does apply, it is shown that such construction of the law is too restrictive. It can hardly be understood how one who calmly plans the burglary of a house or the theft of property, and who deliberately sets about the accomplishment of such offenses, can be said to have accidentally committed the same; yet the law applies to them. Appellant filed an application for suspended sentence. Proof was made that he had never been convicted of felony which entitled him to have that issue submitted to the jury. He introduced proof that his general reputation as a peaceable, law-abiding citizen was good. The court submitted the issue of suspended sentence. If in connection with his written charge on that subject he had included the instruction given verbally at the beginning of the week, and in the presence of the very venire from which the jurors were drawn to try appellant, it could *Page 602 not be questioned that this court would decline to permit the conviction to stand. We are unwilling to give our sanction to a conviction where a verbal instruction such as complained of may have worked injuriously to the interest of one on trial. In the case of Chapman v. State, 42 Tex.Crim. Rep., 57 S.W. Rep., 965 it appears the trial judge believed that juries were making mistakes and turning defendants free under the law of apparent danger and reasonable doubt when they should not do so, and commented upon this matter at length on Monday morning of each week. In passing upon that question this court through Judge Davidson used the following language.
"After argument in a criminal case has been concluded the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case, but he shall not express an opinion as to the weight of the evidence, nor shall he sum up the testimony. It is beyond the province of a judge, sitting in a criminal case, to discuss the facts or use an argument in his charge, calculated to rouse the sympathy or excite the passions of the jury. It is his duty to state, plainly, the law of the case. They were intended to be strictly observed, and not covertly violated. A casual inspection of the excerpt shows a palpable violation of almost every provision of said article. If this charge had been given to the jury as the law of this case, the conviction, of course, could not stand. It is a severe criticism, animadversion and denunciation of the law of self-defense and reasonable doubt. These wise provisions of the law and of our criminal jurisprudence are severely arraigned as being subversive of justice and right. Whether or not the trial court believed in the wisdom of these safeguards of human life and liberty, it was incumbent on him, as it was his duty to observe them. These principles of our law are binding upon trial courts; must be respected, adherred to and enforced."
Doubtless the motives impelling the learned judge who tried the instant case were of the very best, and perhaps it would not have been improper at another place and time to call attention of citizens to what he deemed were improper results being arrived at by juries relative to the law in question; but after a careful re-examination of the entire verbal instruction complained of, and especially that portion relative to the suspended sentence law, we can not escape the conclusion that it may have deterred the jury in extending the benefit thereof to appellant in opposition to the views expressed by the presiding judge. Article 735, Vernon's C.C.P. provides in substance that the judge shall give a written charge in which he shall distinctly set forth the law applicable to the case. Article 736 reads:
"It is beyond the province of the judge sitting in criminal causes to discuss the facts or use any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. It is his duty to state plainly the law of the case." *Page 603
It was doubtless the purpose of the trial judge to caution the jury against what he conceived to be miscarriages of justice, but we are not permitted to lose sight of the fact that such laudible purpose may have worked to the detrement of one tried by a jury who heard the judge's criticism relative to the suspended sentence law, and its operation and abuse. For observations of this court heretofore relative to similar matters we refer to McMahan v. State, 61 Tex.Crim. Rep., 135 S.W. Rep., 562; Dean v. State, 58 Tex.Crim. Rep., 124 S.W. Rep., 924; Drake v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 1160; Murphy v. State, 57 S.W. Rep., 967.
Having concluded, upon a re-examination of the matters referred to, and a further investigation of the authorities, that we were in error in our original opinion in the particulars herein discussed, the motion for rehearing is granted, the judgment of affirmance set aside, and the judgment of the trial court reversed and the cause remanded.
Reversed and remanded.