Burns v. State

• Decision Date: 06 June 1923
• Docket Number: (No. 7774.)
• Citation: 252 S.W. 508
• Parties: BURNS v. STATE.
• Court: Texas Court of Criminal Appeals

252 S.W. 508

BURNS v. STATE.

(No. 7774.)

Court of Criminal Appeals of Texas.

June 6, 1923.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Gus Burns was convicted of the unlawful manufacture of intoxicating liquor, and appeals. Reversed and remanded.

S. F. Hill, of Livingston, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for the unlawful manufacture of intoxicating liquor, carrying a punishment of one year in the penitentiary. In the disposition we find it necessary to make of the case we are not called upon to detail the evidence. The case was one depending for conviction upon circumstantial evidence, was so recognized by the court, and the jury charged accordingly.

Application for suspended sentence had been filed, and appellant introduced several witnesses by whom he proved that his general reputation as a quiet, law-abiding citizen was good. The state in rebuttal placed upon the stand a number of witnesses, and over appellant's objection interrogated them as follows:

"Are you acquainted with defendant's general reputation in the community where he lives for being a man who made and manufactured whisky in violation of law and sold same in violation of law?"

Each of the witnesses answered said question in the affirmative, and then stated that his reputation in that respect was bad. The objections interposed were that the questions were not in the form prescribed by statute, and were highly prejudicial to the rights of appellant. Each bill of exception presenting this alleged error is qualified with the statement that appellant had first put his reputation in issue as being a peaceable, law-abiding citizen, and had filed an application for a suspended sentence, and for these reasons the learned trial judge thought the evidence complained of was admissible.

It is true that, when appellant files an application for suspended sentence, he places his character as to being a peaceable, law-abiding citizen in issue, and the state could property introduce pertinent evidence with reference thereto. In Johnson v. State, 91 Tex. Cr. R. 582, 241 S. W. 484, on rehearing, we undertook to give the view of this court with reference to the proper procedure in the introduction of evidence upon the issue of an accused's reputation raised by filing an application for suspended sentence. In that particular case we had under direct examination the question of proving specific acts of misconduct rather...