Proof that one has been convicted of a felony is admissible when the character of such person has become a legitimate issue. The usual method followed in such case is to ask such person when a witness, if he has not been so convicted, confined in jail, or the penitentiary, and upon his denial prove such fact; but the practice is not and should not in reason be limited to this method. The issue is the credibility of the witnesses and as affecting same, proof that he is a felon is not confined to his statement.
In many jurisdictions he may not be compelled to answer as to such fact, and the proof thereof may not be by parol. Johnson v. State, 49 Ga. 116; State v. Boyd, 178 Mo., 2; Miller v. Commonwealth, Ky., 113 S.W.R., 518; People v. Reinhart, 39 Cal. 44; Commonwealth v. Walsh, 196 Mass. 369; State v. Smith,129 La. 709; Zanone v. State, 97 Tenn. 101.
In this State it is well settled that he may not only be asked such question when on the witness stand but compelled to answer, and if he deny proof may be made aliunde. See Branch's Annotated Penal Code, Sections 167, 168. The doctrine as it now obtains in this State was laid down in Lee v. State, 45 Tex. Crim. 51, where we said: "We understand the rule laid down in the books and authorities above cited to be that the witness can be compelled to answer that he has been convicted or indicted for a crime imputing moral turpitude, if such is the fact, or the indictment or record of conviction can be introduced to attack his credibility. In other words, the witness can be attacked as well by one method as the other."
As approving same we cite Fannin v. State, 51 Tex. Crim. 41; Wilson v. State, 78 S.W. Rep., 232; Brittain v. State,47 Tex. Crim. 602. In the case last cited this court held that, irrespective of whether such question was asked, it might be proven that the accused who had taken the witness stand, was a common prostitute. Reason supports the doctrine. That one is a convicted felon or a common prostitute, is not a particular instance, proof of which leads to confusion of issues and is usually objectionable. It is a legitimate attack upon the general credibility of the witness, and when the life or liberty of the individual or the interests of organized society are at stake, it is of the highest importance that the jury who are the exclusive judges of the facts and the credibility of the witnesses, should know who and what the witnesses are. That the effect of proving by the witness himself or otherwise, a conviction of felony, is an attack upon his reputation, is also well settled and numerous authorities might be cited holding that when it is shown that one has been charged or convicted of crime, or has made contradictory statements, etc., his general reputation for *Page 457 truth and veracity is thus put in issue. Coombes v. State, 17 Texas Crim. App., 258; Payne v. State, 40 Tex.Crim. Rep., 50 S.W., R., 363; Goode v. State, 57 Mo., App., 239; Harris v. State, 49 Texas Crim. App., 338, 94 S.W.R., 227. There would seem to be neither logic nor reason in holding the converse not to be also true.
The manner and substance of the particular interrogation in the instant case escaped our attention when the matter was before us upon original hearing. Witness Seale who testified in regard to the matter was asked, "Did you ever arrest the defendant for a felony?" and answered, "Yes, sir." He was then asked, "What was the felony?" and answered, "Seduction." This ended the matter except that he stated on cross-examination that this was in 1903. We doubt if this was such showing that a charge had been legally made against appellant for such felony as would make the testimony admissible. It does not appear that an indictment was returned, or even that complaint was lodged, or that the arrest was by virtue of capias or warrant. In order to make admissible the facts that one has been charged or incarcerated for felony it must appear that same was legal.
In addition to the above we have concluded that it was material error to allow the State to place before the jury facts relative to the marriages of appellant and that he had been sued by each of his wives for divorce. Such facts seem in no way related to the transaction which involved this unfortunate homicide, nor to shed any legitimate light thereon. Webb v. State, 36 Tex. Crim. 43; Hightower v. State, 53 Tex.Crim. Rep.; Jennings v. State, 42 Tex.Crim. Rep..
For the reasons appearing above appellant's motion for rehearing is granted and the judgment is now reversed and the cause remanded.
Reversed and remanded.