While driving an automobile upon the public highway, the appellant's car came into a collision with a truck, resulting the death of two persons. *Page 559
The state introduced testimony to the effect that immediately after the collision, the appellant appeared to be intoxicated. This he controverted by the testimony of witnesses and also by the introduction of testimony tending to show that the collision resulted from a defect in his eyesight.
A witness testified that about half an hour before the collision took place, the appellant was seen by the witness upon the public road conducting himself in such a manner as to lead the witness to conclude that the appellant was intoxicated. The witness describing the conduct said that the appellant was driving his car upon the wrong side of the road; that he had his arm around the neck of a woman who was riding with him; that the witness warned the appellant that his conduct was such as to endanger the lives of others upon the road and that the appellant took offense and threatened to whip the witness.
The motion for rehearing is based upon the alleged error of the court in receiving the testimony of appellant's character witness upon cross-examination. The witness said:
"I heard something about him having two women up there, and he was drunk and fighting and made an assault on both of them and they calling for Mr. Starnes to come there and get after him."
The offense charged being that the appellant, while drunk, was upon a certain day, driving an automobile, it was competent to introduce testimony of witnesses who had observed the conduct of the appellant, and original testimony of any fact which would tend to establish proof by direct or by circumstantial evidence that the appellant was intoxicated while driving his automobile upon the public road. The evidence of which complaint is made, however, does not come from those who saw the appellant but comes from one who claims to have heard others state that the appellant was drunk upon the occasion in question and that he assaulted the women who were with him. The effect of this testimony was to prove by hearsay that the appellant was intoxicated and that he acted the part. This evidence was received by the learned trial judge upon the theory that it was within the rule permitting one who has testified to the good reputation of the accused to be questioned touching his information of the past conduct of the accused incompatible with the good character relating to the trait under inquiry for which the witness vouched. See Forrester v. State, 28 Tex.Crim. Rep..
The rule stated is subject to an exception, namely, that the inquiry touching the past conduct of the accused of which the *Page 560 witness has heard must be confined to happenings antecedent to the commission of the offense for which he is on trial. See Underhill on Crim. Ev., 3rd Ed., Sec. 142, and cases cited in the text under notes 90 and 92; also Caruth v. State, 77 Tex. Crim. 150; Hopperwood v. State, 44 S.W. 841; Fossett v. State, 55 S.W. 497.
In the present case, there is no direct testimony that the appellant had made an assault upon any woman. The witness who was cross-examined did not claim to have seen the appellant drunk on the occasion in question nor to have seen him make any assault. The witness purported merely to relate things that he had heard concerning the conduct of the appellant upon the day upon which the offense was charged to have taken place. The receipt of his testimony is not only improper for the reasons above stated, but for the additional reason that its effect is by hearsay to establish the very condition upon which the prosecution is based, namely, that the appellant, while driving an automobile upon the public road, was drunk. See Goss v. State, 284 S.W. 578.
For the reasons stated, we have, on reconsideration, concluded that we were in error in affirming the judgment. The motion for rehearing is therefore granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.