McMullen v. State

• Decision Date: 22 October 1924
• Docket Number: (No. 8137.)
• Citation: 265 S.W. 582
• Parties: McMULLEN v. STATE.
• Court: Texas Court of Criminal Appeals

265 S.W. 582

McMULLEN v. STATE.

(No. 8137.)

Court of Criminal Appeals of Texas.

October 22, 1924.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

W. M. (Bully) McMullen was convicted of violation of the liquor law, and appeals. Reversed and remanded.

Callicut & Johnson, of Corsicana, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Navarro county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There is a complaint of misconduct of the jury, and also one of a refusal on the part of the trial court to permit witnesses to testify for the appellant, because they had been in the courtroom; the rule having been invoked. We will not discuss these propositions, inasmuch as they are not likely to arise upon another trial of the case.

Appellant introduced testimony to show his good reputation as a peaceable, law-abiding citizen. The state cross-examined his witnesses on this point, and asked them if they did not know or had not heard that appellant was a bootlegger. Each of them answered in the negative. Thereupon and over objection the state put on the stand in its rebuttal witnesses who testified that appellant had a bad reputation as a bootlegger; i. e. as a maker and seller of whisky, as said by witness Morgan, and as said by witness Strain, "The general talk in the community is that he made and sold whisky." One witness said appellant was "a noted bootlegger." We have never undertaken to define the term "bootlegger," though in other jurisdictions it has been said that he is one who commonly sells or peddles intoxicating liquor, and such we think to be the generally accepted understanding of the term. In our opinion the state went beyond its rights in introducing such testimony as that above referred to. The accused, by putting in issue his general reputation as a peaceable, law-abiding citizen, opened the way for the state in legitimate cross-examination of the witnesses who so testified to ask as to their knowledge or their having heard of appellant's connection with specific instances of crime which statements, if made by them, would have weakened the force of their testimony that his reputation was good. The state has no right, independent of the question of the knowledge of such witnesses, to prove that appellant has been guilty of specific...