Johnson v. State

17 Tex. Ct. App. 565

• Court: Court of Appeals of Texas
• Decided: February 14, 1885
• Docket: No. 1759
• Status: Published

Opinion

White, Pbesidikg Judge.

Appellant was convicted for an assault with intent to commit a rape.

On the trial defendant introduced testimony to the effect that his general reputation was that “ of a peaceable negro, and one who was always polite to white people, and especially to ladies,”— the prosecutrix being a white lady. Afterwards the State placed a witness upon the stand and asked him the question: “ What was the reputation of defendant in Denton county for being a peaceable, law-abiding man?” That portion of the question which called for defendant’s reputation as a “law-abiding man ” was objected to by defendant, for the reason that evidence of his reputation should be confined to those qualities which had reference to the kind and class of offenses as the one on trial, and that evidence of reputation as to violations of the law in other respects than with regard to cognate crimes was calculated to mislead and prejudice the jury. The objection was overruled, and evidence of his general reputation “ as a law-abiding man ” was allowed.

It is a well established rule that “ when a criminal intention is of the essence of the offense charged, the accused may, as relevant to the question of his guilt or innocence, put in issue and prove his general character in that respect which is impugned by the accusation.” (Coffee v. The State, 1 Texas Ct. App., 548; Lockhart v. The State, 3 Texas Ct. App., 567.) But the evidence should be restricted to the trait of character which is in issue, that is, it ought to have some analogy and reference to the nature of the charge. (3 Greenl. Evid., § 25; Leader v. The State, 4 Texas Ct. App., 162; Jones v. The State, 10 Texas Ct. App., 552; Whart.’s Grim. Evid. (8th ed.), § 60 and note.) It was error to permit the prosecution to investigate defendant’s general reputation as “a law-abiding man ” when he had not put it as such in issue.

It is insisted that the charge of the court omitted to instruct the jury “ that the intent should be proven beyond a reasonable doubt, as well as the assault itself, and that the court erred in refusing defendant’s first special instruction, which supplied the omission.” This objection is not borne out by the record. On the contrary, the jury were expressly told in the charge that, in order to “ warrant a conviction, among other things it is incumbent on the part of the State to satisfy your minds beyond a reasonable doubt, first, that the assault charged was committed, as charged, with the actual intent to commit the offense of rape on the said Mattie Belle Walker. Second, that it was the defendant, Sterling Johnson, and not another, who committed the assault.” This charge fully meets the points asked in defendant’s instructions relative to the specific intent and the fact of defendant’s identity with the party making the assault, and, the court having already properly charged the law upon these phases of the evidence, was not required to give additional special instructions upon the same subject.

Another special instruction requested by defendant and refused was in these words, viz.: “ If the jury believe from the evidence that the witness Mattie Belle Walker was, at the time of the alleged assault, from sickness, nervousness or other cause, in such mental condition that her faculties were impaired, and she believed the defendant was making an assault upon her, when in point of fact defendant nor any one else was present, and said witness was laboring under an hallucination as to the presence of defendant, they will find the defendant not guilty.” It is believed that this instruction is obnoxious to the objection that it was upon the weight of evidence, and therefore was properly refused. "We will not comment upon the evidence (which will be fully reported), but in our opinion it is not sufficient to support this conviction.

Because the court erred in admitting illegal evidence, and because the evidence is not sufficient to establish the crime alleged and the conviction, the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered February 14, 1885.]