Upon the trial of this case, after the testimony for the defense was closed, the State proved by a witness that the general character of the deceased was that of a quiet, good natured man who would not harm anybody. This evidence was not objected to by the defendant at the time it was introduced, but after it had gone to the jury the defendant moved to exclude it, which motion the court overruled, because it had not been objected to at the time it was offered. Thereupon the district attorney said that, in order to prevent any question about the matter, he would withdraw the question and consent for the testimony to be stricken out, and the court then instructed the jury not to consider this evidence, and that it was stricken out. This proceeding was excepted to at the time by defendant, and is presented to us by a proper bill of exceptions, and earnestly insisted upon by counsel as an error demanding the reversal of the judgment. That this testimony was not admissible when objected to, there can be no doubt. “It is never competent for the prosecution to show, in the first instance against the defendant, that the person slain was of good or peaceable character. But such evidence may be given in rebuttal if the opposite has been testified to for the defense.” (2 Bish. Cr. Proc., sec. 612.) It was error in the court to refuse to exclude this testimony from the jury when defendant moved to have it excluded, and, under some circumstances, such error might be held sufficient to work a reversal of the conviction.
But in this case, after a consideration of the evidence, which to our minds overwhelmingly establishes the guilt of the defendant, we cannot conceive how this illegal testimony could possibly have affected him injuriously, especially when the court explicitly informed the jury that it was stricken out, and directed them to not consider it. We think the error complained of, while it is an error, is of such a trivial character as to be of no appreciable consequence, and would not warrant a reversal of the judgment. (Gose v. The State, 6 Texas Ct. App., 121; Reynolds v. The State, 8 Texas Ct. App., 412.)
There is no assignment of errors in the record, no other bills of exception, and no other question made than the one we have decided, and we find no error apparent of record which we feel called upon to consider; and believing that the conviction is fully supported by the evidence, the judgment is affirmed.
Affirmed.
Opinion delivered April 28, 1883.