Houghton v. State, 33272

• Decision Date: 19 April 1961
• Docket Number: No. 33272,33272
• Citation: 171 Tex.Crim. 91,345 S.W.2d 535
• Parties: Frank L. HOUGHTON, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 535

345 S.W.2d 535

171 Tex.Crim. 91

Frank L. HOUGHTON, Jr., Appellant, v. STATE of Texas, Appellee.

No. 33272.

Court of Criminal Appeals of Texas.

April 19, 1961.

[171 TEXCRIM 91] Legg, Saxe & Baskin, by Reagan H. Legg, Stubbeman, McRae, Sealy & Laughlin, by Boyd Laughlin, Midland, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Judge.

This is a conviction for the misdemeanor offense of driving while intoxicated upon a public highway, with punishment assessed at a fine of $150 and three days' confinement in jail.

[171 TEXCRIM 92] Trial was to a jury.

In view of the disposition of this case, we will not discuss the facts.

Appellant adduced testimony from several character witnesses, showing his general reputation to be good for being a peaceable and law-abiding citizen and for being a man of sober habits.

On cross-examination and over appellant's objection, nearly all these witnesses were asked about specific acts of misconduct and their knowledge concerning both appellant's drinking habits and about specific occasions when they had drunk whisky with him.

By numerous informal bills of exception, appellant complains of the action of the court in allowing the county attorney to extensively cross-examine several of appellant's witnesses.

The county attorney was permitted to continue to ask various witnesses about specific instances and their personal knowledge of any drinking by appellant.

Appellant strenuously and repeatedly objected to this line of questioning.

In one instance, the county attorney asked a witness: 'Have you been known to get drunk?' The witness was required to answer over appellant's objection. Other witnesses were asked if they had ever taken a drink with appellant and if they had ever seen him drunk, and were asked other questions concerning specific times, places, and instances.

We think the court erred in permitting the prosecution to make inquiry of these character witnesses concerning their knowledge of specific acts and conduct on the part not only of the appellant but also of the witnesses, themselves.

It has long been the law in Texas that character witnesses, testifying to the good general reputation of a defendant as a sober, peaceable, and law-abiding citizen, may not be asked about specific acts in order to show either good or bad reputation.

In the case of Prater v. State, 104 Tex.Cr.R. 669, 284 S.W. 965, 966, this court stated as follows:

[171 TEXCRIM 93] 'General reputation is confined solely to what people generally think and state about it, and it is not permitted, on an examination of the witness in chief, to show specific acts, in order to show good or bad reputation; neither do we think it is permissible, on cross-examination, to show by the witness what he knows individually about specific or particular acts or conduct of the accused, because this would do violence to the principle upon which testimony on character is based, and, as has been said by eminent writers, would unnecessarily extend the length of the trial, since it would require or call for testimony on the part of the accused to refute or rebut such testimony of specific acts, and would do violence to the proposition that the accused is presumed to know and be prepared to answer upon trial what the public knows generally, but is not supposed to know, and be ready to answer...