ON STATE'S MOTION FOR REHEARING.
DAVIDSON, Judge.It is the rule of long standing that if impeaching testimony can be used only for the purpose of impeachment, no necessity exists to limit such testimony before the jury. Branch’s P. C., Sec. 188, p. 121; Art. 658, Vernon’s C. C. P. and authorities cited under Note 133 thereof; Dowlen v. State, 144 Tex. Cr. R. 177, 161 S. W. (2d) 1067; 42 Tex. Jur., Secs. 99 and 100, pp. 136-137.
The state insists that the reversal of this case, predicated *373upon the failure to limit impeaching testimony, violates the rule stated.
The question, then, is whether the impeaching testimony was such as could be used by the jury for purposes other than and outside of impeaching the witnesses.
We are not here dealing with testimony which impeaches the accused as a witness, such as existed in the Tweedle case, 218 S. W. (2d) 846, cited as authority sustaining our original opinion in this case.
Here five witnesses attested appellant’s good reputation as a peaceable and law-abiding citizen. Such testimony supported the application for a suspended sentence and placed in issue the appellant’s reputation for the trait of character mentioned. Upon cross-examination the state asked each of these witnesses if they had heard that in 1939 appellant had cut a man by the name of Easter in the neck. Three of the witnesses testified that they had heard of such conduct by appellant; two of the witnesses said they had not so heard. The state then asked each of those witnesses if they had heard that appellant in 1940 had stabbed and killed one Solomon. One of the witnesses answered that he had so heard; the others denied having heard thereof.
It is this testimony of the witnesses who admitted having heard of appellant’s conduct in the two particulars mentioned that the appellant sought to have limited before the jury.
Witnesses attesting the good reputation of an accused may, as affecting the weight, credibility, and sincerity of their testimony, be asked upon cross-examination as to whether they had heard of acts of the accused inconsistent with that reputation. Attesting authorities will be found in 39 Tex. Digest, Witnesses, Sec. 274 (2), p. 200. Such, however, is as far as the state is permitted to go in such matters, for it is expressly prohibited from conducting the cross-examination or framing the interrogatories so as to show specific acts of misconduct on the part of the accused or that he has, in fact, been guilty of such acts. Adaire v. State, 119 Tex. Cr. R. 381, 45 S. W. (2d) 984; Stewart v. State, 148 Tex. Cr. R. 480, 188 S. W. (2d) 167; McNaulty v. State, 138 Tex. Cr. R. 317, 135 S. W. (2d) 987.
The distinction between the two rules just stated lies in the fact that the inquiry of the character witnesses as to whether they had heard of acts of misconduct by appellant is admissible, *374upon the theory of impeachment of the witness’ testimony; on the other hand, the state is expressly precluded from proving, by hearsay, that the accused is in fact guilty of misconduct.
Here, the jury had before it the testimony of three witnesses that they had heard that appellant had, in 1939, cut another person in the neck. Also, one of these witnesses had heard that, in 1940, appellant had stabbed another man to death. The jury were not advised by the court as to the purpose for which such testimony was admitted; nor were they told that they could consider same only for the purpose for which it was admitted.
It is apparent, therefore, that the jury could appropriate and consider such testimony for any purpose they might deem proper and could very easily say that because three witnesses had heard that appellant stabbed a man and a year later killed another, there must be some truth in the hearsay testimony.
Such being true, it is apparent that the testimony should have been limited before the jury.
The state’s motion for rehearing is overruled.
Opinion approved by the Court.