— Thе The conviction is for the unlawful transportation of intoxicating liquor; punishment for Guajardo at confinеment in the penitentiary for a period of one year, and for Lopez for a period of two years.
A motion was made to quash the indictment for the reason that the name of the appellant was in fact “Zeferino Lopez” while in the indictment it is spelled, “Sefrino Lopez.” The indictment was not bad. The misspelling of the name could have been corrected upon suggestion of the appellant. The statute makes such a provision. See Arts 559 and 560, C. C. P.; also Wardlow v. State, 18 Texas Crim. App., 356, and other eases listed in Vernon’s Tex. Crim. Stat., Vol. 2, p. 286. The court correctly proceeded under this statute and permitted an amendment, of the indictment. Each of the appellants applied for a suspended sentence in accord with Article 865b of the C. C. P. Proof was introduced to the effect that they were under twenty-fivе years of age and had not been convicted of a felony. There was testimony that the reputаtion of the appellants as law-abiding citizens in the community in which they lived was good. Upon this issue the Statе introduced the witness Burwell, who, on direct examination, testified as follows:
“My name is Charles Burwell. I hold the offiсial position of deputy sheriff in Kleberg County. I have been deputy sheriff since the 1st day of January, 1923. I know thesе defendants only by what I have heard of them. I have had occasion to investigate their reputation as to being peaceable and law-abiding citizens. I know their reputation as to being peaсeable and law-abiding citizens in the community in which they live and are best known. It is bad. This applies to partiсularly one of these defendants. The one in particular is Zeferino Lopez. Zeferino López has a harder reputation in his community than the other boy. Guardo’s reputation is bad, but not as bad as the othеr one.”
CROSS EXAMINATION:
‘ ‘ I talked to two people about these men. They were in Ealfurrias, Brooks County. They were thе county attorney and the sheriff. I have their statement and no others; that is all I have. I have never lived in Brоoks County.”
Objection was urged against the receipt of this testimony, and a special charge was рresented seeking its withdrawal. This was refused. As we understand the record, the appellants were residents оf Brooks County, and the witness developed no knowledge of the reputation of the appellаnts in Brooks County or elsewhere, save that he had been told by the sheriff and county attorney of Brooks County that both of the appellants bore a bad reputation in that county.
Another witness gave similar testimоny over appellants’ objection, but it was incorporated with some evidence which was proper, and the effort to withdraw the whole cannot be sustained.
*232 The opinion is entertained that the сourt was not warranted in refusing to instruct the jury to disregard this testimony. Its effect was not to prove the reputation but to prove that the witness had been informed by officers in Brooks County that the appellants bore a bad reputation in that county. If the State had contented itself with the mere proof that the witness knew the general reputation of the appellants in the respect mentioned in the community in which thеy lived and that it was bad, the record might have presented no error, but having gone further and revealed thе damaging fact that the reputation was regarded by the officers in Brooks County as very bad, at least as to one of the appellants, the rules of evidence would not sanction its receipt. The only real question presented was whether in view of the youth of the appellants and the mitigating facts to which they testified, the jury would recommend the suspension of the sentence.
Another matter to be mentioned is that during the argument, the prosecuting officer said to the jury that preliminary to the trial, the appellant’s attorneys offered to plead guilty upon the condition that they be given a suspended sentenсe and that this proposal had been refused by the State’s attorney. This was putting into the case faсts not otherwise developed and clearly not admissible. The court instructed the jury to disregard this statement. It was obviously prejudicial, however, and as one of the appellants received more than the minimum punishment, it cannot be said to have produced no bad result. It may have been approрriated by the jury against both of the appellants on the issue of the suspended sentence.
In his closing argument, the State’s counsel called upon the jury to note the large crowd in the courtroom and thе class of people of whom it was composed, who. were there with no interest in the apрellants other than to learn what sentence they would receive. We are not able to appraise the bill on account of its meagre recitals. However, so far as -we are able tо discern the remark was not within the scope of legitimate argument.
Because of the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.