Poyner v. State

• Decision Date: 21 December 1898
• Citation: 48 S.W. 516
• Parties: POYNER v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W. 516

POYNER v. STATE.

Court of Criminal Appeals of Texas.

December 21, 1898.

On motion for rehearing. Reversed.

For former opinion, see 47 S. W. 977.

Branch, Garrison & Blount, for appellant. Mann Trice, for the State.

HENDERSON, J.

This case was affirmed at a former day of this term, and now comes before us on motion for rehearing. The statement of facts was stricken out, because the court overlooked the fact that the same had been filed within the time authorized by law. Our attention has been called to the 10-day order, which at the time escaped our notice, and now the full record, including the statement of facts, is before us. Appellant excepted to a number of questions asked by the state of the prosecuting witness, on the ground that said questions were leading. Some of the questions, as explained by the court, could not be considered leading; but others, if not leading, strongly tended in that direction. Inasmuch as the case will be reversed on another ground, we call attention to this matter, and suggest that care be observed in authorizing questions that appear to be leading. We do not think the court erred in refusing to permit appellant to ask certain questions of D. C. Turner as to what the father of defendant may have told him as to the guilt of appellant. It is claimed by appellant that this testimony was admissible for the purpose of laying a predicate to contradict the witness Turner. We would observe, in regard to this character of testimony, that a witness can only be impeached upon material matters. This attempt to lay a predicate for impeachment was purely upon hearsay testimony. An attempt to prove what the father of defendant may have said to witness as to the guilt of appellant in order to impeach said witness upon such hearsay testimony is not permissible.

Appellant reserved the following bill of exceptions: "Thurston, a witness for the defendant, being placed on the stand, was asked the following question, to wit: `Are you acquainted with the general reputation of the defendant in the neighborhood in which he lives for gentlemanly deportment and good moral character?' to which question the state's counsel objected, which objection was sustained by the court, and the witness not permitted to answer the question; whereupon defendant's counsel then and there excepted to the ruling of the court, and notified the court that defendant had in court ten or twelve more witnesses whom he desired to put on the stand and ask the same...