v.
State
Article 660 of the Code of Criminal Procedure, which prescribes the order in which a trial before a jury shall be conducted, provides in subdivision 3 that “the district attorney or the counsel prosecuting in his absence, shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.” This subdivision of said article we construe to be merely directory, and a disregard thereof is not, in our opinion, per se such error as invalidates a conviction.
“Wherever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from a failure to observe directions given the court by the Legislature, we think, unquestionably, the judgment should be reversed.” (Campbell v. The State, 42 Texas, 591.) There is nó apparent reason for apprehending that a disregard of the direction contained in subdivision three resulted injuriously to the defendant, and it is not made to appear in the record that any injury did result to him therefrom. This requirement is quite different from that contained in subdivision one of said article, and which this court has held to be mandatory, and a disregard of which is per se material error, although injury to the defendant be not shown to have resulted therefrom. (Wilkins v. The State, 15 Texas Ct. App., 420; White v. The State, 18 Texas Ct. App., 57.) The hold, therefore, that the error complained of in defendant’s bill of exception number one is not a material one.
We will remark, however, that in the conduct of trials the directions prescribed by the statute should be strictly followed, and especially when those directions are insisted upon by the defendant. The Legislative will, when plainly expressed, should be observed and rigidly adhered to by the courts in matters of practice, as well as in all other respects.
When the defendant has voluntarily put his character in issue, the prosecution may introduce evidence in rebuttal, but ordinarily such rebutting testimony must be confined to general reputation and can not be extended to particular acts. An inquiry as to character must be limited to the general reputation of the person in the community of his residence, or where he is best known, and the witness must speak from his knowlege of this general character, and not from his own individual opinion. (Brownlee v. The State, 13 Texas Ct. App., 255; Wharton’s Criminal Evidence, section 61.) The evidence as to character should be confined to the defendant's character alone, and the inquiry should not be extended to the character of others connected with him, or with whom he may associate. We know of no rule of evidence which authorizes an inquiry as to the character of a defendant’s associates. In the case before us such evidence was admitted oyer defendant’s objection, and was clearly calculated to operate to his prejudice. Because of this error the conviction should not be permitted to stand.
There is a defect in the charge of the court, which, though not excepted to, we think proper to notice. In defining theft, it omits the word “fraudulent,” and the jury are no where in the charge directly instructed that to constitute theft there must be a fraudulent taking of the property. Considering the charge as a whole, it inferentially means that the taking must have been fraudulent, but, as the fraudulent intent is the very gist of this offense, the jury should have been directly and plainly so instructed. In other respects, the charge of the court does not appear to be objectionable in any material particular.
Because the court erred in admitting the testimony of the witness Prince, relative to the character of the defendant’s associates, and that because of the character of said associates the defendant had been under the surveillance of the officers; and also because of the error in the charge-above mentioned; and, further, because of the •unsatisfactory and inconclusive character of the evidence upon which the conviction is based, the judgment is reversed, and cause is remanded.
Reversed and remanded.