Defendant appeals from a conviction for statutory rape.
In view of the disposition of this case, the question of the sufficiency of the evidence as to penetration will not be discussed.
Leading questions to a child are within the discretion of the trial court (People v. Hinrich, 53 Cal. App. 186,199 P. 1058), and in the absence of the abuse of such discretion, rulings made thereon will not be disturbed. (McClean v. City ofLewiston, 8 Idaho 472, 69 P. 478.)
The subject of "intent" as to included offenses or what included offenses could properly be considered by the jury was fully covered by the instructions considered together. Therefore, there was no error in refusing defendant's requested instructions, numbers four and five.
Defendant's requested instructions, numbers one, two and three, commented on the weight of the evidence and were therefore properly refused.
Error is assigned because the court sustained an objection to the following question asked of the prosecutrix on cross-examination:
"Isn't it a fact that you told him (Mr. Gibbs) that Alfred (the defendant) gave you a dime for preparing dinner, putting the dishes on the table?"
The whole tenor of the previous testimony of the witness had been to the effect that her activity in the house had not been confined to anything so innocuous as setting the table. By the great weight of authority, before the testimony of a witness can be impeached by showing prior contradictory statements, a "warning question" must be *Page 763 asked, giving the witness a chance to explain or deny the prior contradictory statements. (Jones on Evidence, 2d ed., p. 4734, sec. 2402.) The warning question is clearly for the protection of the witness whose testimony is to be impeached. For some reason, the prosecuting attorney objected to this question put to his own witness and the court sustained him. The ruling of the court was probably erroneous but if any prejudice resulted, it prejudiced the state and not the defendant. Later Mr. Gibbs (defendant's father) testified that the prosecutrix had told him that Alfred had given her a dime for setting the table. This raised a square conflict in the testimony as to the nature of the prosecutrix's errand in the Gibbs house. If she had been allowed to answer the question to which the state objected, a satisfactory explanation of her apparently conflicting statements might have been forthcoming.
An instruction like the one given, obviating the necessity of corroboration of the prosecutrix, has been held erroneous inState v. Hines, 43 Idaho 713, 254 P. 217, and State v. Larsen,44 Idaho 270, 256 P. 107.
The judgment of the court is reversed and the cause remanded for a new trial.
Wm. E. Lee, C.J., and Taylor and T. Bailey Lee, JJ., concur.
Budge, J., dissents. *Page 764