Appellant renews his contention that the court was in error in declining to permit him to introduce witnesses to prove his general reputation as a peaceable, law-abiding citizen. He bases this contention on the wording of the statute which in substance is that where an application for suspended sentence is filed the defendant shall have the right to introduce witnesses to show his good reputation. (Art. 778, C. C. P., 1925.) He seeks to have the statute construed to mean that under no circumstances would the court have a right to decline to hear witnesses offered upon the issue of reputation. Among other cases he cites Morrison v. State, 40 S.W. 591. The opinion upon that point has been overruled by later cases unless it may be distinguished. In that case after defendant had offered three witnesses who testified as to his reputation the court inquired if the state intended to introduce any evidence to the contrary. The district attorney at first said he did not know, but later said the state would not introduce any evidence upon that issue. It does not appear that there was an admission on the part of the state that appellant's reputation as a law-abiding citizen was good. In that respect it may be distinguished from the cases hereafter referred to. The purpose of introducing evidence upon any issue is to establish as a fact the matters testified to by the witnesses. If the opposite party admits unqualifiedly in open court the truth of the matter sought to be established nothing can be added to it by testimony. In the present case after one witness had testified that appellant's reputation was good counsel for the state agreed in open court and in the presence of the jury that his reputation in all respects was good and the court so instructed the jury as to such admission. Under these circumstances there was no error on the part of the court in declining to hear other witnesses upon that issue. Becker v. State, 80 Tex.Crim. Rep., 190 S.W. 185; Bowlin v. State, 93 Tex.Crim. Rep., 248 S.W. 396. The fact that appellant sought the benefit of the suspended sentence law would make no difference in applying the principle. It is expressly so held in Wagley v. State, 87 Tex.Crim. Rep., 224 S.W. 687.
The motion for rehearing is overruled.
Overruled. *Page 49