Wyatt v. State

• Citation: 124 S.W. 929
• Parties: WYATT v. STATE.
• Decision Date: 26 January 1910
• Court: Texas Court of Criminal Appeals

124 S.W. 929

WYATT v. STATE.

Court of Criminal Appeals of Texas.

January 26, 1910.

Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.

Willie Wyatt was convicted of robbery, and appeals. Reversed.

Baskett & Evans, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for robbery; the punishment assessed being 15 years' confinement in the penitentiary. The former appeal is reported in 55 Tex. Cr. R. 73, 114 S. W. 812.

A bill of exceptions was reserved which recites matters with reference to the absence of appellant's father, and the circumstances are set forth in the bill of exceptions in regard to his absence as a predicate for offering his testimony, given on a former trial. Without going into a detailed statement of these matters, the evidence in regard to the absence of the father excludes the idea that he is beyond the jurisdiction of the state. The testimony was excluded upon the ground that a sufficient predicate had not been shown that the witness was either dead or absent from the state; that is, beyond the jurisdiction of the court. There was no error in this ruling. We have not been furnished with a brief in the case, nor are any authorities cited in support of this alleged error. We have been unable to find any authorities which support this contention of appellant. Under no provision of our statute was this testimony introducible as a matter of law or right. Nor have we been able to find a rule of evidence which would justify its introduction. Had the father been absent from the state or dead, a very different proposition would have been presented. Provision has been made in the Code of Criminal Procedure authorizing the accused to take depositions of witnesses when beyond the jurisdiction of the state, or to introduce depositions of such witness when taken in the state before his departure from the state; but that is not the question here involved or contended for by appellant. We are here confronted with the proposition that the mere absence of a witness from court or his inaccessibility would justify appellant in asking for a reproduction of the testimony of the absent witness, although within the jurisdiction of the court and within the state. There was no error in excluding this testimony.

2. Another bill of exceptions was reserved to the action of the court in respect to impaneling the jury. This question was decided adversely to appellant in the case of Hattie Martin v. State (decided at the present term) 124 S. W. 681. It is therefore unnecessary to discuss that question.

3. Another bill discloses that, while the assistant county attorney was cross-examining the defendant, he propounded this question: "Have you not been convicted and given ten years in this case?" The court immediately interrupted and stopped the attorney, and remarked to him: "Don't ask such questions as that. You know you have no right to ask such questions, and if you do it again the court will punish you." The court then turned to the jury, and instructed them that the question was not in evidence, and that it was illegal and improper, and that they should not consider it for any purpose whatever. After this reprimand, appellant's counsel objected to the question of the attorney for the state, and asked that they be allowed to take a bill of exception, and complained of the conduct of the state's counsel, etc. We are of opinion this conduct was of such a nature and character that under the statute would require this court to reverse the judgment. It is true, there was no answer to the question; but it was stated in such manner that the jury did not fail to understand what was meant, and this view of it is emphasized by the statement of the court and reprimand of the attorney, and admonition to the jury not to consider it. These matters manifested the fact that it was understood by the court and counsel and the jury, and the whole matter emphasized the fact that it was an allusion to the former conviction; and this bill demonstrates the further fact that it was an intentional allusion by the attorney asking the question to the former conviction. The manner and promptness of the court's interference were such as to carry convincing weight to the jury that he knew, and that the fact was, that appellant had been convicted before this. True, the trial court did his utmost to minimize the wrong done in asking the question. While not answered in terms, in the light of the entire record, the jury knew the fact from the question and all that occurred as certainly and as truly as if it had been answered in the affirmative. It is unfortunate that we should under such circumstances be required to reverse a case. But we cannot consent to the impairment or infringement of a right which the law in express...