Yeiral v. State

• Decision Date: 19 May 1909
• Citation: 119 S.W. 848
• Parties: YEIRAL v. STATE.
• Court: Texas Court of Criminal Appeals

119 S.W. 848

YEIRAL v. STATE.

Court of Criminal Appeals of Texas.

May 19, 1909.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

E. F. Yeiral was convicted of aggravated assault, and he appeals. Reversed and remanded.

O. L. Stribling, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of aggravated assault, and his punishment assessed at two years' imprisonment in the county jail and a fine of $750.

The only question in this record we deem necessary to review is the matter presented by bill of exceptions No. 23. The appellant, in his own behalf, introduced as a witness his wife, whereupon the following examination of said witness was made by the defendant's counsel:

"Q. Is the defendant your husband? A. Yes, sir. Q. Are you living together now as man and wife? A. Yes, sir. Q. Were you living together as husband and wife in March, 1907? A. Yes, sir. Q. Do you know Jim Sypert? A. Yes, sir. Q. Did you know Jim Sypert in November, 1906, the fall before the shooting took place? A. Yes, sir. Q. Mrs. Yeiral, state whether or not you had a conversation with Sypert near the cowpen during the fall preceding the shooting by your husband in March, 1907. A. I did not speak to him. Q. Did any one speak to you or your daughter, while you were at the cowpen in the fall preceding the shooting? If so, what was said? A. Some one called for Mary some time before the shooting. Q. State just where you were, and what time of day or night it was, and what the parties said. A. It was in the evening. I was down there doing the milking, and some one holloed several times. They holloed for Mary. Q. Who is Mary? A. She is my daughter. Q. Did you see the person who was calling to your daughter? A. No, sir; I could not see. It was getting dark. Q. Could you recognize the voice? A. Yes, sir. Q. Who did you recognize? A. Jim Sypert's voice. Q. Jim Sypert, the man that lived close to you? A. Yes, sir. Q. He was your neighbor? A. Yes, sir. Q. What did this party say when calling for Mary? A. He called, `O! Mary,' and I told him to come closer, and then he never called any more. Q. He never answered again? A. No, sir. Q. Did he say anything besides calling the daughter's name? A. Nothing but the name. Q. How far, judging from the sound of the voice, did he appear to be from where you were? A. About 300 or 400 feet. Q. State whether or not you know the direction from which the voice came. A. Yes, sir; it came from Sypert's place. Q. State whether or not you ever told your husband of the fact of Sypert calling to your daughter. A. Yes, sir; I told him just as soon as he came in for supper. State's Counsel: Q. That same night? A. Yes, sir. Appellant's Counsel: Q. What did you tell your husband? A. I told him that Sypert had called for Mary—that he made a mistake and thought that I was Mary."

And upon cross-examination the following questions were propounded by the state to said witness: "Q. Where is Mary now? A. She is married, and lives in the neighborhood of Elk. Q. Who did she marry? A. Rudolph Kline. Q. Is that the young man who worked at the house at the time of the shooting? A. Yes, sir." And thereupon counsel for the state propounded the further question: "Q. Is he the same man that you sent over to Jim Sypert's house on the night of the shooting?" To which question the defendant objected on the ground that it was improper, and called for a matter that was improper for cross-examination, to which objection the court stated: "You cannot cross-examine the wife on matters that were not brought out on direct examination." To which action of the court the defendant then and there excepted, whereupon the state propounded the following questions, and the following proceedings were had before the court and jury in reference thereto, before the witness answered any of said questions:

"Mr. Neff: Did you send Kline over there? Mr. Stribling: Now, if the court please, we object to counsel for the prosecution deliberately asking improper questions in order to force us to object to every question. We also object to the last question. The Court: Overruled. Mr. Stribling: Exception. I do not think it is proper practice for counsel to ask questions that they know are not proper questions, in order to force counsel of the other side to make objections. It has an effect on the jury, and we object to the court permitting it. The counsel for the prosecution knows it is a violation of the rules of evidence, and we object to the witness being subjected to any questions relative to matters not properly brought out on direct examination. The Court: I would not undertake to rule in advance relative to these questions. Your objection is overruled. Mr. Stribling: Exception. Mr. Neff: Q. Mrs. Yeiral, where were you the night Jim Sypert was shot? Mr. Stribling: Objected to. We request the court to protect the defendant from this sort of cross-examination. It is liable to prejudice his rights before the jury. The Court: Objection sustained.

"Mr. Stribling: Will the court say that counsel has the right to ask questions which are improper, and which are only asked for the purpose of compelling us to object? Their purpose in asking along this line is to compel us to object to everything. The Court: I do not want to place you in any false position. Mr. Stribling: This cross-examination is for no other purpose than to make us object. Mr. Taylor: The rules of practice are that counsel of either side may object to the questions propounded by the opposing side, stating the grounds of their objections. The Court: That is my understanding of the matter. Mr. Cross: Do you hold that the questions which have been asked this witness and to which we have been objecting are proper ones? The Court: I am not going to make any hypothesis of it. Every time an improper question is asked, I will rule it out. Mr. Cross: You will find it only necessary to rule against the other side. We never ask improper questions. They are asking these questions in an improper way. They are putting the words in the witness' mouth. Do I understand that the court is going to permit these violations? The Court: I do not understand your reference as to the violation in the manner in which the witness is testifying.

"Mr. Stribling: The counsel for the defendant moves the court to require the counsel for the state to desist from asking any further questions from this witness relative to the facts which led up to the commission of the offense for which the defendant is charged, except matters which were brought out on the direct examination. The Court: Motion denied. Mr. Stribling: We take an exception to the...