The appellant put in issue his character by proof of his general reputation in the community in *Page 389 which he lived for honesty and fair dealing. On that issue the State introduced controverting testimony. The appellant excepted to the failure of the/court to embrace in his charge an instruction to the effect that the testimony on the subject could be considered alone for the purpose of passing upon the credibility of the defendant and the weight to be given his testimony and could not be considered upon the issue of guilt of the offense charged. The request was properly refused. The evidence mentioned bore upon the question of guilt. In Underhill's Crim. Ev., 3rd Ed., p. 169, sec. 135, it is said:
"The accused may always prove his good character as a matter or right, where guilty knowledge or criminal intent is the essence of the crime, to show that it is unlikely that the accused committed the act." See also Bessing v. State, 78 Tex. Crim. 76; Wharton's Crim. Evidence, 10th Ed. Vol. 1, p. 241, sec. 58a; also p. 243, sec. 60. The case of Lee v. State, 2 Tex.Crim. App. 339, and many other authorities cited by Mr. Branch in his Ann. Tex. P. C., sec. 148, coincide with the proposition announced in the text above.
In his direct testimony the appellant, in addition to putting in issue his character generally on the question of guilt or innocence, also put in issue his general reputation by a plea seeking a suspended sentence. In his direct testimony in support of the plea he stated that he had never been convicted of a felony, but that he had some trouble in the Navy and was given a jail sentence. State's counsel in cross-examination propounded the following question:
"You were dishonorably discharged from the Navy?" Objection was made that the inquiry was immaterial. The court overruled the objection but no answer was given. The inference was that the discharge was incident to the trouble and the conviction of which the appellant testified. At least, the inquiry was in accord with his testimony. However that may be, the bill is not regarded as showing facts justifying a reversal of the judgment. The cases cited (Floyd v. State, 299 S.W. 263; Bryant v. State, 2 S.W.2d 848; Minor v. State, 5 S.W.2d 775) are distinguishable upon the facts.
The question of identity and other questions raised in the motion for rehearing were discussed at length in the original opinion. In that opinion the proper disposition is regarded as having been made of the complaints.
The motion is overruled.
Overruled. *Page 390