The State through the Hon. A.A. Dawson, County Attorney of Van Zandt County, has filed a motion for rehearing in which it is most earnestly urged that we were in error in reversing the judgment. We cannot too highly commend the zeal of the prosecuting officer in this instance, and a like interest manifested *Page 12 generally by such officers in following their cases to this court would aid us materially in the discharge of our duties which daily grow more onerous from the increasing number of cases presented for review.
We regret that we are unable to agree with counsel's contention that we were in error in holding that the answer of appellant's brother in the affirmative to the question: "In that conversation between himself and you, in substance, was his conversation to the effect that he had had carnal intercourse with her?" was an opinion and conclusion of the witness. Our attention is directed to the qualification of the learned trial judge to the bill of exception presenting this matter. Accepting the qualification that the witness was an unwilling witness and that he had brought himself with an exception permitting leading questions, still we are unable to reach any other conclusion than that the question elicited an opinion from the witness which is not permissible however unwilling he may be, nor to what extent he may have brought himself within the rule permitting a leading question. Our opinion does state that the question was "leading and suggestive," but we think an examination of it will disclose that it was based upon our view that in whatever form the question was put, and whether permissible or not under the qualification of the court, it still called for and permitted the witness to express his opinion and conclusion rather than to give the substance of the language, and permit the jury to draw their conclusions therefrom.
Believing our original opinion properly disposed of the case, the motion for rehearing is overruled.
Overruled.