Ferguson v. State

This case was reversed for the sole error of the refusal of the trial court to permit appellant to ask three witnesses for the State if they had heard that deceased had been indicted for highway robbery. In a very strong motion for rehearing the State insists that we erred in concluding this action of the trial court to be an error of such materiality as to call for a reversal. We have most carefully reviewed this contention and the authorities cited by the State and those referred to by us in our original opinion.

The complaint of appellant in regard to the refusal of the trial court to admit such testimony, appears in bills of exception Nos. 17, 18 and 19. Each of these bills is identical except as to the name of the witness, and in part is as follows:

"Be it remembered that upon the trial of said cause, after the witness Bob Hannah had been permitted by the court to testify, over the objection of the defendant, that he knew the deceased, Grover Gibson during his lifetime, and that he knew his reputation for being a harmless or inoffensive man and a peaceable man, then the defendant asked said witness, on cross-examination, whether or not he had heard that the deceased had been charged by indictment in one case which, at the time of his death, was pending in the district court of Limestone county, charging the deceased with highway robbery, but the State objected to the witness answering said question."

It is obvious from this quotation that each of said bills of exception fails to show that any of the witnesses had testified that the general reputation of deceased in the community in which he lived for being a peaceable, law-abiding man, was good. It is not enough for a witness to testify that he knows the general reputation of the party inquired about, but it must be made to affirmatively appear that the witness had testified that said reputation was good or bad, as the case may be. This defect in each of said bills of exception escaped our notice upon original consideration of the case. It is manifest that none of said bills presents error in the condition in *Page 218 which they appear in the record. It might also be observed that each of said bills of exception further reflects the fact that the reputation inquired about and which appears to have been known to the witness, was not the general reputation of the deceased. A question which merely inquires for the reputation of a party, does not bring itself within the comprehension of a proper inquiry. Until the bills of exception show that an issue was before the court properly, to which cross-examination was pertinent, it would not be erroneous for the trial court to reject that which would otherwise be a proper cross-examination.

We conclude that we were in error in reversing this case because the bills of exception complaining of the rejection of the testimony were not in such condition as to properly present the contention of the appellant.

Believing ourselves to have been in error, the motion for rehearing will be granted, the judgment of reversal set aside and an affirmance ordered.

Affirmed.

ON REHEARING. June 27, 1923.