36 S.W. 585 | Tex. Crim. App. | 1896
Appellant was convicted of seduction, and given two years in the penitentiary, and prosecutes this appeal. There is nothing in appellant's motion to quash the indictment in this case. It follows the statutes, and is in accordance with Willson's form on the subject. On the trial of this case, the defendant introduced Eliza McCullar to prove that Anna May Lindsey was not a woman of virtuous character. Said witness testified on her direct examination that she knew the general reputation of Anna May Lindsey in the community in which she lived, as a woman of virtue and chastity, and that such reputation was bad; and afterwards, on her cross-examination, by the State, she testified that she had heard different ladies in the neighborhood speak disparagingly of her conduct as early as April, 1893. She also stated that she had "heard it said, a half dozen or more times, that Anna May Lindsey would not do, and that her language was rough, and her manner rude, and did improper things with men." On further examination, this witness stated that she never heard any person say she was not a virtuous woman. The State then objected to said testimony, and asked to have it excluded from the jury. The court excluded the same, and the defendant reserved his bill of exceptions thereto. This bill of exceptions appears in the record, but it is not approved by the trial judge. The evidence appears to have been admissible, but, as the bill is not approved, we cannot consider it. The introduced one Chase, as a witness, who testified that the reputation of Anna May Lindsey for virtue and chastity was good in the community in which she lived. On cross-examination, the said witness stated that he had never heard any one speak of the reputation of said Anna May Lindsey in that respect. Thereupon the defendant objected to said testimony, and asked that the *215
same be excluded. The court thereupon overruled the objection of appellant, and in that connection remarked: "The authorities agree, and the courts have held, that there is no higher evidence of the good character of a person than that it was never discussed. That fact is the very best evidence of good character." Appellant objected to the remark made by the court in connection with the exclusion of said evidence, and saved his bill of exceptions thereto. It may be true, as stated by the court, that a witness may be qualified to speak of the general reputation of a person as to some quality without having heard the person's character in that respect discussed. But, in this case, the character of the prosecutrix for chastity was a direct issue in the case, and for the court to remark, in the presence of the jury, in passing on the admissibility of such testimony, that the fact that the witness had never heard the reputation of the prosecutrix in that regard discussed was the very best evidence of her good character in that respect, was a remark upon the weight of the testimony made in the presence of the jury, and was calculated to impress them with the idea that the testimony of the witness as to the character of the prosecutrix in the respect inquired about was of the very highest. No doubt the learned judge simply meant to state that the predicate laid by such testimony was sufficient to enable the witness to speak as to the character of the prosecutrix. If he had said this, no evil result could have ensued; but, instead thereof, his expression was calculated to impress the jury that the evidence as to the character of the prosecutrix came from the very highest source. This, we think, was error. See, Wilson v. State, 17 Tex.Crim. App., 525; Cook v. State, 27 Tex.Crim. App., 198; Reason v. State (Tex.Crim. App.), 30 S.W. Rep., 780; Lawson v. State (Tex.Crim. App.), 32 S.W. Rep., 895; Kirk v. State,
Reversed and Remanded.
