In his motion for rehearing appellant again complains because the court submitted to the jury the question as to whether or not the appellant was leading an immoral and profligate life. It is appellant's very earnest contention that in view of the fact that there is no evidence showing that appellant was leading a profligate life, it was harmful to him to submit this issue to the jury as it probably suggested to them that the issue, in the judgment of the trial court, was raised by the evidence. We have again very carefully examined the testimony in the case and fail to find therein any suggestion that the appellant was leading an immoral and profligate life. The most that the testimony shows is that he was idle for a considerable period of time. Under these conditions *Page 6 we are constrained to believe that we were in error in holding in our original opinion that "the record is not so utterly lacking in testimony showing that appellant was immoral and profligate as to make the mere submission of this question to the jury reversible error." As above stated, we have again carefully examined the testimony and find nothing therein showing that appellant possessed these traits of character. In the absence of testimony to this effect we think it was probably harmful to him for the court to submit this issue to the jury. The court's attention was directly called to it by a pertinent exception leveled at his charge submitting this question and we are constrained to hold that his refusal to so correct the charge as to eliminate this issue from it was reversible error.
In view of another trial, it is our opinion that the trial court should not permit the State witness to testify that he saw the appellant talking to persons whom he knew to be bootleggers and gamblers because they had paid fines for it. The bill of exception contained in this record is not as full as it should be but if the testimony should be properly objected to on another trial, we think it should be excluded. Ayres v. State, 254 S.W. 981; Young v. State, 116 S.W. 1158.
The criticism of the court's charge was cured by the special charges given.
Appellant's motion for rehearing is granted and the judgment of the trial court is 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.
ON MOTION FOR REHEARING.