Nickels v. State , 90 Fla. 659 ( 1925 )

The reversal is based solely upon a ruling of the trial court in sustaining an objection to a question by which it was sought to discredit certain testimony of a State witness on the ground that he had made contradictory statement as to the matter.

On cross examination of an expert witness for the State, he was after stating time and place asked: "Doctor, didn't you tell Mr. Hammond and Mr. Rooney, that from your examination, that you were of the opinion that Mrs. Moore had not had intercourse with any man for several hours before you made that examination?" A. "No." Then followed an explanation by the expert witness as to what he had said on the subject. The defense produced Mr. Rooney as a witness and after stating the time and place asked him: "Did not Dr. Taylor tell you in that conversation, in the presence of Mr. Hammond, in his office there, that he had examined Mrs. Moore on the afternoon of this alleged offense, and that from his examination, he was certain she had not had any intercourse with any man for several hours prior to the time that he examined her?"

The objections by the State to the question were "that the proper predicate therefor had not been laid, and that the question in the manner framed is an improper question by which to impeach the testimony of Dr. Taylor." The court properly sustained the objection to the question as asked. The question "in the manner framed" was a leading question, and the trial court will not be held in error for sustaining an objection to it on that ground. See Wood v. State, 31 Fla. 221,12 South. Rep. 539; See also 40 Cyc. 2752, 2775.

A leading question should be permitted only when it appears essential to justice; where a witness is persistently unwilling or biased, or there exists some like reason, the court should allow it. In some cases a party may and should be permitted to lead his own witness. This matter, however, is in the discretion of the court. It is not ground of error, and Appellate courts universally refuse to review such exercise of discretion. Coker and Scheiffer v. Hayes, 16 Fla. 368; Stinson v. State, 76 Fla. 42, 80 South. Rep. 506; Silvester v. State,46 Fla. 166, 35 South. Rep. 142. The foundation as laid was to contradict the witness in his denial that he had stated he was "of the opinion that Mrs. Moore had not had intercourse with any man for several hours before" his examination of her, while the question asked the impeaching witness was: "Did not Dr. Taylor tell you * * * that from his examination he was certain she had not had any intercourse with any man for several hours prior to the time that he examined her?" The impeaching question was quite different from the question asked the witness, Myers v. State,43 Fla. 500, 31 South. Rep. 275. Where the impeaching question is leading, a proper objection thereto may be sustained by the trial court within its discretion without committing material error, particularly where it is not, at least in substance and effect, the same question that had been put to the witness sought to be impeached. Upon sustaining a proper objection to a leading question an appropriate question may be asked. To be of the "opinion" (in this case a qualified opinion) that there had been no sexual intercourse within a few hours is not in substance or effect the same as to be "certain" that no such intercourse had been had within the time stated.

After an objection was properly sustained to another question asked the impeaching witness, that witness was asked: "Will you please state what Dr. Taylor said to you in that conversation about the result of his examination of Mrs. Moore, and his opinion on the same." This question was objected to "because it calls for hearsay testimony, and because the question in the manner framed is an improper question by which to impeach the testimony of any witness." The objection was sustained and the defendant excepted to the ruling. Even if the question as framed was not subject to the second ground of the objection because too broad, so that the court committed technical error in sustaining the objection to the last stated question, and if the ruling may be regarded as covered by the assignment of errors, such ruling could not reasonably have been harmful to the defendant in view of the nature of the testimony of Dr. Taylor as an expert witness. Besides this, the verdict is fully sustained by legal and sufficient evidence, even if all the testimony of the expert witness Dr. Taylor be wholly disregarded. Such testimony was not of a nature that would prejudice the jury against the defendant.