¶1 (Dissenting.) The judgment in this case is reversed' solely because of the desire on the part of the state’s attorney to impeach his own witness, but the trial court did not permit it. The decision shows there is ample evidence to sustain the verdict, and that unless error be shown in the matter mentioned, the defendant had a fair trial.
¶2 The witness Heer was a member of the group during the evening of the crime; but denied he was at the cemetery at the time the offense was committed. Apparently his testimony led the state’s attorney to believe he was a hostile witness. The state’s attorney asked the witness this question, “Now I will ask you did you not state to me that Matt Noel told you after you came back from the cemetery that he had had intercourse with Julia Horner?” The witness answered, “No.” The defendant assigns error on this, but no objection was made to the question, and, therefore, the assignment of error fails.
¶3 The decision does not reverse the case because of this question but cites it, I assume, to show the connection with the question to which objection was made and overruled.
¶4 The state, presumably to contradict its own witness, Heer, called the sheriff, Louis Langeliers, and the record shows as follows:
“Q. Do you recall the conversation had between myself and Albert Heer in your car on the 11th day of April 1935, on the road West of Linton ? A. Yes, sir.
“Q. Were you in the car that day? A. I was.
“Q. And who else ? A. Mr. — I can’t recall his name, Albert Heer is it?
*685 “Q. Where was I ? A. In the front seat.
“Q. Where was you ? A. In the front seat.
“Q. Where was Albert Ileer? A. In the bach seat.
“Q. Do you recall what kind of a car Albert Ileer was driving that day ? A. He was driving a truck, I think an International.
“Q. Do you recall the conversation had between myself and Albert Heer at that time, the meeting on the 11th of April 1935 ?
“By Mr. Kelsch: Answer Yes or No.
“A. Yes, sir.”
¶5 It will be noted there is no intimation as to the content of the conversation and no objection to these preliminary questions. The record continues:
“Q. Will you state that conversation?
“By Mr. Kelsch: That is objected to as no proper foundation has been laid for the impeachment of the witness Albert Heer; second, that the question is not in proper form as an impeachment question was not put to the witness.
“By the Court: Sustained on the ground that the witness admitted the statement on April 11th as I remember his testimony.
“Q. Do you recall the conversation had on that day between myself and Mr. Heer ? A. I do.
“Q. And can you state that conversation at that time — you can answer that Yes or No? A. Yes, sir.
“Q. Will you state the conversation had between myself and Mr. Heer on the 20th of May 1935, in your presence?
“By Mr. Kelsch: That is objected to as incompetent, inadmissible, no proper foundation, not a proper impeaching question, not in proper form, no foundation has been laid for the impeachment of the witness upon any specific point.
“By the Court: The witness Albert Heer didn’t deny the conversation but he did deny a certain statement.”
¶6 Again it will be noted there is nothing to suggest the nature of the conversation. The record continues:
“Q. You heard the witness, Albert Heer testify this morning? A. I did.
*686 “Q. Did you hear the witness, Albert Heer, deny having made tbe following statement ? A. I did.
“Q. Wait a minute — that Albert Heer told me that Matt Noel told him that be bad bad intercourse with Julia Horner on tbe night in question ?
“By Mr. Kelsch: That is objected to as prejudicial, and not binding on him, and not made in tbe presence of the defendant.
“By the Court: It will be admitted merely for tbe purpose of impeachment of tbe witness, Albert Heer.”
¶7 This is tbe ruling' challenged and tbe ruling is tbe sole ground for reversal. Tbe answer was “He did.” Tbe jury beard Heer deny it, tbe judge beard him deny it, those present in tbe court room beard him deny it. Tbe effect of tbe sheriff’s testimony was nugatory, tbe jury knew be was telling tbe truth.
¶8 Tbe record continues:
“Q. What did be say?
“By Mr. Kelsch: That is objected to as improper, incompetent, prejudicial, hearsay, no foundation laid, not binding on this defendant, and not a proper impeaching question.
“By tbe Court: Sustained.”
¶9 Tbe question involved this record: “Did you bear tbe witness, Albert Heer, deny having made tbe following statement? . . . Wait a minute — that Albert Heer told me (tbe state’s attorney) that Matt Noel told him (that is, Heer) that be (Noel) bad bad intercourse with Julia Horner on tbe night in question ?” Tbe defense objected to this question, but tbe court permitted it and so tbe witness answered that be beard Heer deny making that statement. Had tbe sheriff been permitted to show tbe witness said Matt Noel told him, etc., we would .have an entirely different situation.
¶10 When the sheriff was asked if he recalled tbe conversation, not only -did tbe defendant fail to object to it, but defendant’s counsel told tbe '.sheriff to “Answer yes or no.” In response to this suggestion by defendant’s own counsel, tbe sheriff said be recalled tbe conversation bad between Heer and tbe state’s attorney. He was examined about getting tbe witness Heer, was cautioned by defendant’s counsel not to go into conversation and be did not. He was asked if be recalled tbe conversation, be said be did, and be was asked if be could state it and to answer *687 jes or no, and he answered that he conld state it. There was no objection on the part of the defendant to any portion of this examination. He was then asked the question set forth in the majority opinion, “Did you hear Heer deny making the statement etc. ?” He said he did. When asked what he said, that is what was the conversation, the defendant objected and the court sustained the objection.
¶11 It is claimed the state’s attorney, in this subtle way, got before the jury as a fact that his own witness at one time said to the state’s attorney that Matt Noel had told Heer of the intercourse with the complaining witness. But he did not. Heer denied saying so, no one disputes the denial, nothing further was done. Nowhere in the record that I can find does the state’s attorney offer to prove or even state he could prove Heer told him so.
¶12 This court went far in the case of State v. Youman, ante, 204, 263 N. W. 477, to reverse a conviction for rape because of the attempt of the state to impeach its own witness; but whatever may have been the merits of the controversy in the Youman Case, it is clear there was far more foundation there than in the case at bar. In the Youman Case the state’s attorney stated in the presence of the jury that the witness was testifying on the trial “different from what he did at the preliminary hearing;” that he had the transcript of the record with him. He flourished the transcript before the court, read purported extracts of this testimony in the form of questions to the witness, and did impeach his own witness. This court, in this Youman Case, held this was reversible error, even though the witness impeached was a witness for the state because the questioning of the state’s witness and showing of his testimony on the preliminary examination implied “that the witness was withholding from the jury facts which were unfavorable to the defendant. Such an implication is prejudicial in its tendency, and, under the circumstances, we cannot say that it did not have an effect upon the jury’s verdict.” Whatever may be the merit of this reason, the situation does not exist here. There was no impeachment of his own witness.
¶13 In the majority opinion a large number of cases are cited to the effect that while a party may impeach his own witness, “a mere negative answer, when the party expected an affirmative answer, will not give the right to contradict the witness.’’ In Andrews v. State, 64 *688 Tex. Crim. Rep. 2, 141 S. W. 220, 42 L.R.A.(N.S.) 747, cited, tbe state’s attorney bimself told wbat be claimed tbe witness said, very much as in tbe Youman Case, supra, and tbe testimony be was trying to get into tbe record was testimony to exculpate a woman claimed to be an accomplice and not on trial — not statements as to wbat tbe defendant said. In Bailey v. State, 37 Tex. Crim. Rep. 579, 40 S. W. 281, it was tbe defendant who sought to impeach bis own witness who was testifying as she testified on tbe preliminary examination. Tie was not surprised, fox be knew wbat she would testify. He did not need to call her in tbe first place, and she gave no damaging testimony against him. He asked for an attachment for a witness to impeach her and tbe trial court refused it. Tbe court of criminal appeals said this was correct.
¶14 Wbat is said in tbe majority opinion about bow error in impeachment may be cured or may be incurable is based on tbe premise that tbe party introduces contradictory testimony in tbe nature of impeachment. That did not happen here. No witness impeached Heer.
¶15 It is not every mistake of tbe state’s attorney which justifies a reversal. In the case of State v. Nedtvedt, ante, 535, 268 N. W. 397, just recently decided, it was shown tbe state’s attorney, in bis argument to tbe jury, called tbe defendant a “bootlegger” when there was no testimony in tbe record showing her to be a “bootlegger;” and this court held it was not reversible error, though conceded to be improper, because tbe trial court told tbe jury to disregard tbe statement. In tbe case at bar the defendant did not even ask tbe court to caution tbe jury to disregard the answer of tbe sheriff that be bad beard ITeer deny making tbe statement involved, or to pay no attention to any imputation in tbe question asked.
¶16 To reverse a case because of an erroneous ruling on a preliminary question makes tbe state’s work more dangerous than tbe walking on tbe proverbial eggs. Many a preliminary question, standing alone, has no bearing upon tbe issue involved, but to permit an answer to such preliminary question is not necessarily a reversal. As to whether such questions are competent is to be determined by wbat follows. As nothing followed in this case, tbe .question was merely irrelevant and immaterial. In State v. Kent (State v. Rancoast) 5 N. D. 516, 536, 67 N. W. 1052, 35 L.R.A. 518, awitness for the state was asked questions *689 “which, standing alone, would have no bearing upon any issue in the case.” But this court held that such questions were preliminary in their nature. They became competent by reason of what followed, and, therefore, the effect of such preliminary questions could then be determined. The majority seem to think the plain intimation of this examination was that TIeer had made to the state’s attorney the statement which TIeer denied making. Even if this be the intimation, the state was merely showing that its own witness was not telling the truth at one time and was, therefore, not worthy of credence by the jury. The state was destroying the effect of its own witness. TIad the state shown what statement TIeer made, the rule set forth in the Youman Case might apply, but certainly does not here for the state did not go that far.
¶17 It is admitted there is ample evidence to sustain the verdict, and yet because the sheriff truthfully answered that he heard a witness for the state deny that he had made a certain statement to the state’s attorney, without any proof whatever regarding the statement or any impeachment of the witness, there must be a new trial. We may as well repeal § 11013 of the Comp. Laws, which says: “After hearing the appeal, the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties.” Had the sheriff been permitted to answer that TIeer had made that statement, it would have been an entirely different proposition. I believe the judgment should be affirmed.