In the light of appellant's motion for rehearing, we have again examined the record. Bearing in mind that appellant was tried before the repeal of the statutes defining manslaughter and that the evidence showed that appellant killed deceased at the first meeting after he had been informed that deceased had insulted his wife, we have reached the conclusion that some of the questions presented by appellant, which were originally deemed not of such prejudicial character as to warrant a reversal, involve errors that were calculated to bring about a conviction for murder when under the facts adduced by the state as well as by appellant the jury might very properly have concluded that appellant, if guilty at all, should be convicted of no higher grade of homicide that manslaughter. In short, we are unable to say that the errors hereinafter pointed out when taken together were, under the facts of the case, harmless.
Appellant had testified, as shown by bill of exception Number 14, that he was under indictment in Roberts County for manufacturing whiskey. Over proper objection, the state was thereafter permitted to ask him when he was "arrested and charged with bootlegging in Miami in Roberts County." The question was improper. It was not relevant to any issue in the case. As affecting appellant's credibility *Page 258 as a witness it was proper to show that he had been indicted for manufacturing liquor, but there the inquiry should have stopped.
Again, as shown by bill of exception Number 16, over proper objection, appellant was required to testify that it was between two and three weeks from the time he was arrested on a charge of manufacturing whiskey before he made bond. Such testimony was not relevant to any issue and therefore, inadmissible. It could only tend to show that appellant was a bad man generally and one in whom confidence could not be reposed, as evidenced by the fact that his friends were afraid to make his bond.
As shown by bill of exception Number 4, over proper objection, a witness for appellant on cross examination was required to answer that appellant's wife was jealous of deceased. It would appear that such conclusion on the part of the witness when given expression in the presence of the jury would naturally lead the jury to believe that appellant was jealous of deceased and his wife, and hence, being actuated by jealousy, killed deceased. The bill presented error.
Considered together in the light of the evidence, the bills above discussed, cannot be said to fail to reflect prejudicial error.
Believing that we were in error in our original affirmance of the judgment, the motion for rehearing is granted, the judgment of affirmance is set aside, the judgment of the trial court is now reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.