Lead Opinion
Appellant was convicted in the Criminal District Court of Dallas County, of the offense of manslaughter, and his punishment fixed at five years confinement in the penitentiary.
- A number of bills of exceptions appear in the record, all of which have received our careful attention, but we deem none of sufficient importance to discuss, except Bills of Exception Nos. 1, 2 and 3. It is urged in bill of exceptions No. 3 that counsel prosecuting privately, used improper argument to the jury in his closing address. Examining the same, we find that it was a sort of an apostrophe to the various members of the family of deceased, who were present, and contributing to the sympathetic effect of such speech by their conduct. We have held that such appeals as appear in this bill, are calculated to arouse the sympathy of the jury, but it appears that no objection was made to any of the matters thus -transpiring until the said argumеnt was concluded; and further, that no special charge on the subject was *454 asked. There appearing no misstatement of any material facts, prejudicial to appellant; no personal abuse, such as is calсulated to arouse prejudice against him; and 119 misstatement of any issue by which he could have suffered injury, we have always held that no reversible error is presented in this condition of the record.
By his bill of exceptions No. 2, appеllant complains that the prosecuting attorney was permitted to hold in his hand, in close proximity to the jury, certain papers, stated to be those pertaining to divorce cases theretofore filed against appеllant by his two wives, and to ask such questions relative thereto as to injure the appellant. This bill is qualified by the trial court in such manner as to show that when the first question was asked relative to a divorce, some papers were then held in the hand of the State’s attorney, but immediately upon objection being made, the jury was withdrawn, the objection was sustained, and that said papers were no longer held in view of the jury, exhibited, or referred to. It appears that appellant had put in issue his reputation both for truth and veracity, and as a peaceable, quiet, law-abiding citizen, and also as a kindly, generous man, and that as affecting such reputation, the witnesses mentioned in this bill were asked relative to whether or not they had heard of cruel treatment on the part of the accused toward his two wives. This was objected to also. We think that when a defendant puts his reputation in issue, as affecting their knowledge, his witnesses may be аsked if they had not heard of specific instances of his misconduct, which, if true, would affect such reputation, and we do not think that the fact that such misconduct was against his wife, child, mother, or other relative, would alter the rule, or make such evidence inadmissible.
During the trial, and when introducing its rebuttal evidence, the State placed on the stand a witness, who was asked if he had ever arrested appellant on a felony charge, to which the witness answered that he had; and in response to a further question, stated that he had' arrested appellant for seduction. The defense asked him when said arrest took place, and he replied “in 1903.” The time of this trial was in 1920. Appellant objected to this evidence when offered, because same was of an occurrence too remote, and asked -the court to exclude the same from the jury, which objection was sustained, and the court told the jury that a man’s reputation might not be attacked by proof of his arrest more than ten years prior to the time of the trial, and since it had developed that more than ten years had elapsed since said arrest, they would not consider the evidence for any purpose.
This was all that transpired relative to this matter in the presence of the jury. It further appears from the bills of exceptions, however, that before this evidence was offered by the State, the trial cоurt was informed privately by the defense, in the presence of the prosecution, that such evidence would be offered, and that it was too remote, and, therefore, objectionable; also, the defense requested thе court to instruct the prosecution not to ask anything relative to such arrest in
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the presence of the jury. The averments of said bill further show that the court then stated privately to said parties that under the law no such evidence wоuld be admissible, if it related to an arrest more than ten years prior to the trial, but refused to instruct counsel for the State not to propound questions relative thereto. . No contention was made by the State that the defense wаs in error as to the fact that the arrest occurred some seventeen years before the trial, but as we understand the bill of exceptions, there was agreement on this point between the State and the defense. We think if the trial court be apprized before evidence is offered, of its erroneous character, and there be then entire agreement between the State and defense as to same, the court should not permit it in evidence. Bullington v. State,
We know of no hard and. fast rule which fixes a given number of years, beyond which an event becomes too remote to have weight in testimony. The application of the rule of remoteness is somewhat difficult, being affected by the facts of the particular case. See Bibb v. State,
Finding no error in the record, the judgment of the trial court is affirmed.
Affirmed.
Addendum
*456 ON REHEARING.
February 9, 1921.
Proof that one has been convicted of a felony is admissible when the character of such person has become a legitimate issue. The usual method followed in such case is to ask such person when a witness, if he has not been so convicted, confined in jail, or the penitentiary, and upоn his denial prove such fact; but the practice is not and should not in reason be limited to this method. The issue is the credibility of the witnesses and as affecting same, proof that he is a felon is not confined to his statement.
In many jurisdictions he may not be compelled to answer as to such fact, and the proof thereof may not be by parol. Johnson v. State,
In this State it is well settled that he may not only be asked such question when on thе witness stand but compelled to answer, and if he deny proof may be made
aliunde.
See Branch’s Annotated Penal Code, Sections 167, 168. The doctrine as it now obtains in this State was laid down in Lee v. State,
As approving same we cite Fannin v. State,
The manner and substance of the particular interrogation in the instant case escaped our attention when the matter was before us upon original hearing. Witness Seale who testified in regard to the matter was asked, “Did you ever arrest the defendant for a felony?” and answered, “Yes, sir.” He was then asked, “What was the felony ?” and answered, “Seduction.” ¿This ended the matter except that he stated on cross-examination that this was in 1903. We doubt if this was such showing that a сharge had been legally made against appellant for such felony as would make the testimony admissible. It does not appear that an indictment was returned, or even that complaint was lodged, or that the arrest was by virtue оf capias or warrant. In order to make admissible the facts that one has been charged or incarcerated for felony it must appear that same was legal.
In addition to the above we have concluded that it was material error to allow the State to place before the jury facts relative to the marriages of appellant and that he had been sued by each of his wives for divorce. Such facts seem in no- way related to the transaction which involved this unfortunate homicide, nor to shed any legitimate light thereon. Webb v. State,
For the reasons appearing above appellant’s motion for rehearing is granted and the judgment is now reversed and the cause remanded.
Reversed and remanded.