The judgment herein was affirmed on a previous day of the term, and appellant has filed a motion for rehearing contending that this court was in error in not reversing the judgment on account of the court below permitting a leading question asked a witness, and because we held that the witness, although under age and could be tried as juveniles, should be permitted to testify. The error alleged is based on the theory that she could not, therefore, be punished for perjury because it would leave optional with the witness whether she would be tried for felony or misdemeanor as juvenile. On the latter question we still think the opinion was correct with reference to the fact that the witnesses would be subject to conviction for perjury.
The other question raised was not discussed in the original opinion, as we recall it, but as appellant insists upon it, it will be noticed. The bill recites that while the prosecuting witness was testifying the district attorney asked her the following question: "Did or did not Andrew (meaning the defendant) put his privates into your privates — did he or not get his thing in your thing?" The objection was that it was leading, and further that the witness was neither an unwilling nor an unfriendly witness The witness answered in the affirmative. So far as the second prosposition is concerned, that the witness was neither unwilling nor unfriendly, was certified simply as a ground of objection and not as a fact. If such was the case it should have been stated in the bill of exceptions as a fact that she was neither an unwilling nor an unfriendly witness; but we take it that would make no difference so far as a disposition of the case is concerned. The question finally turned upon and seems to be the one relied upon by appellant, that the question was leading. There are a great many authorities to the effect that a leading question is *Page 219 one which may be answered in the affirmative or negative, and which suggests the desired answer in a matter material to the issue. This is supported by quite a number of cases collated by Mr. Branch in his Annotated P.C., p. 90, Sec. 157. We simply refer to the cases there listed without here enumerating them. It is also stated as a rule, supported by many authorities, that if the question asked does not suggest the answer desired it is not leading. There is a list of these cases cited in the same note by Mr. Branch He begins these citations with Coats v. State, 2 Texas Crim. App., and cites a great number. It is also laid down by the court as a proposition, supported by a great number of opinions, that permitting leading questions will not be reversible in the absence of showing prejudice thereby. A great number of these cases will be found cited by Mr. Branch in the same note, supra.
We do not understand that this was a leading question in the sense in which the authorities mention. This question is put in the alternative "did or did not" the matter happen. It did not suggest to the witness what the desired answer was. It could have been answered in the negative or in the affirmative. If the statement of facts is examined, it will be found that this witness fully detailed all the circumstances with reference to the transaction between herself and defendant. This was sufficiently stated in the original opinion. She testified that she laid down by him and at his request she complied and the intercourse occurred. She told fully all the facts pertaining to it. But looking at it from another viewpoint, this bill is not sufficient to present the question. The rule is well sustained that where the bill of exceptions is taken because of a leading question, it must affirmatively exclude any idea that under the peculiar circumstances of the particular case the court was justified in permitting the State to ask leading questions, and if it does not no error is shown. Cases supporting this proposition are found collated by Mr. Branch in his work, supra, in Sec. 159. This bill does not undertake, as we understand it, to meet this rule. It does not affirmatively exclude the idea that the court was not justified in permitting the question asked, even if it was a leading question. It is true the bill states that counsel objected to the question as being leading, but the question as stated speaks for itself. It does not exclude the idea but what under all the circumstances it was proper to ask the question, even had it been leading. The mere statement that the witness was neither an unwilling or an unfriendly witness is stated as a ground of objection and not as a matter of fact. As we understand the question from the facts there could have been no prejudice to appellant by asking the question and receiving the answer, because the girl gave a full detail of the transaction. She testified fully to the facts as did the other eyewitnesses, that the transaction occurred between the girl and appellant, except the other witnesses did not swear nor did they state that the private parts of prosecutrix was entered, but they *Page 220 testified to the fact that the act of intercourse occurred under such circumstances as such things usually occur. This is an unusual case it may be conceded and a very remarkable one to the mind of the writer. That an act of this sort should have occurred in a room in broad daylight in the presence of three or four other girls besides prosecutrix is out of the usual. As a rule the parties to sexual intercourse do not take eyewitnesses along to view the performance, but here the act occurred in a room where a lot of girls were eyewitnesses. They at least so testified. The defendant introduced no evidence, and himself did not take the witness stand to contradict it. Therefore, we take it that the jury was justified in believing the occurrence happened. The prosecutrix testified fully to it, and the eyewitnesses corroborated her statement. It was proved to the satisfaction of the jury, and we would not therefore feel justified in reversing the judgment.
The motion for rehearing will, therefore, be overruled.
Overruled.