Appellant was convicted in the District Court of Gillespie County of theft of property of the value of more than fifty dollars, and his punishment fixed at three years in the penitentiary.
Appellant was tried in February, 1922. Complaint is made of the fact that he was not allowed to show that his general reputation as a law-abiding citizen was good prior to his return from the army. This was offered as bearing upon his application for a suspended sentence, appellant having pleaded guilty to the offense charged. The testimony was offered from witness Townsend and may be discussed in connection with further testimony offered from witness Fowler to the effect that appellant's general reputation as a law-abiding citizen was good prior to July 1921, that being about the date of a burglary committed by appellant and some associates, which fact was not denied.
When an application for suspended sentence is presented and the reputation of the accused as a peaceable, law-abiding citizen made an issue, the test is his present reputation. Wilson v. State, 83 Tex.Crim. Rep.; Wagley v. State, 87 Tex. Crim. 504, and as we understand the instant record, it was not denied that since the burglary above mentioned some months prior to the theft charged in the instant case, appellant's reputation in this regard had been bad. This being true, we are of opinion that the contention now before us in regard to the admission of the above testimony is unsound. We do not wish to be understood as holding that where the accused has moved from place to place that he may be denied the privilege of proving his reputation by separate witnesses for each time and place of his habitation. Such practice would be permissible, but in a case like this where no witness is offered to show good reputation at the time of trial or up to the commission of the instant offense, and it is admitted that at such time his reputation is bad, it is not erroneous to reject testimony which seeks to carve out of the past life of the accused a certain period and prove good reputation therein. We are cited to no authority and know of none holding such course proper.
We do not believe the trial court was called upon to permit appellant to show that he was not of the highest order of mentality. Appellant offered testimony the effect of which would have been to show him a person easily influenced by his associates. The law of a suspended sentence is bottomed on the hope of reformation of the offender, and certainly evidence whose tendency would be to show that the accused was one easily persuaded to crime by any criminal, would not strengthen the belief on the part of the jury that to give him a suspended sentence would reform him. *Page 635
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING. June 20, 1923.