Thacher, J.:
An indictment for rape was preferred by the grand jury of Warren county against Isaac Toumey, at the April term, 1845, of the circuit court of that county. Under the statute a change of venue was allowed, and the indictment was tried in the county of Claiborne, whereupon a verdict of guilty was rendered, and the defendant sentenced to imprisonment in the penitentiary for the term of twenty years.
The defendant below brings the cause into this court by a writ of error, sued out upon exceptions reserved to the ruling of the court, in admitting and rejecting testimony upon the trial.
The first exceptions exhibited in the record relate to the mode of examination pursued with the witness for the state, Mary Folkes. This witness, having previously testified that about the first day of September, 1844, at which time she was just sixteen years of age, the defendant committed a rape upon her, was then permitted by the state to be asked upon her examination in chief, this question: “ If Mr. Toumey then, or at any subsequent time, said anything to you in relation to this matter to dissuade you [311] from disclosing it? State when, where and what he said.” Again, the witness having testified that she was the defendant’s step-danghter, and had lived with him as her guardian from the age of eight or nine years to the year 1842, during which time he had treated her very affectionately, was also permitted to be asked by the state : “ If, in any of his antecedent conversations, he (Tourney) offered property, or any other advancement to you, in order to attach him to you, say so ?” Again, the following question was permitted to be put to the same witness: “ If, at any time, subsequent to the transaction, he (Tourney) said anything about what punishment the laws of Mississippi would inflict on him, or you, or both Instate it all.” These questions were answered affirmatively.
It is well settled that in the inquiry into the nature of a transaction, whatever was said by both parties, as well as what was done during the continuance of the transaction, is admissible.1 Roscoe’s Cr. Ev., 22. But in this case the objections are directed to the form of the questions, upon the ground of their being leading questions.
It is often extremely difficult to distinguish such questions as should not be allowed because of their leading tendency, from those which, though in form leading, in effect only draw the mind of the witness to the subject of inquiry. But, while it is impossible to lay down any fixed rule, which will serve in all cases, there are yet certain established rules upon the subject of leading questions, which afford a good test by which to discriminate in cases not very doubtful. For instance, that is a leading question which suggests to the witness the answer desired.2 1 Stark. Ev., 124; 2 Phill. Ev., 722; The People v. Mather, 4 Wend., 249. And that is also a leading question which assumes a fact to be proved, which is not proved. A question is also leading which, embodying a material fact, admits of an answer by a simple negative or affirmative. The latter constitutes an argumentative or pregnant cause of interrogation, which the law holds objectionable.3 1 Greenl. Ev., § 434.
[312] On tbe other hand, however, there are exceptions to the rule,1 which forbids leading questions to be put to a witness in bis examination in chief; as when he is manifestly reluctant and hostile to the interest of the party calling him,2 or when he has exhausted his memory3 without stating the particulars required, where it is a proper name, or other fact, which cannot be arrived at by a general inquiry, or when the witness is a child of tender years, whose attention cannot be otherwise called to the subject matter.4 Moody v. Rowell, 17 Pick., 498.
It is also to be observed upon this subject, that much discretion is confided to a court in regulating and controlling the examination of witnesses, which is to be governed by the circumstances of each case;5 and that some courts have gone so far as to hold that the subject, under what circumstances a leading question may be put, is a matter resting in the sound discretion of the court presiding over the examination, and is not a matter upon which to base a motion for a new trial, or which can be assigned for error. Greenl. Ev., § 435; 17 Pick., 498 ; Stratford v. Sanford, 9 Conn. R., 275.
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Thacher, J.:
An indictment for rape was preferred by the grand jury of Warren county against Isaac Toumey, at the April term, 1845, of the circuit court of that county. Under the statute a change of venue was allowed, and the indictment was tried in the county of Claiborne, whereupon a verdict of guilty was rendered, and the defendant sentenced to imprisonment in the penitentiary for the term of twenty years.
The defendant below brings the cause into this court by a writ of error, sued out upon exceptions reserved to the ruling of the court, in admitting and rejecting testimony upon the trial.
The first exceptions exhibited in the record relate to the mode of examination pursued with the witness for the state, Mary Folkes. This witness, having previously testified that about the first day of September, 1844, at which time she was just sixteen years of age, the defendant committed a rape upon her, was then permitted by the state to be asked upon her examination in chief, this question: “ If Mr. Toumey then, or at any subsequent time, said anything to you in relation to this matter to dissuade you [311] from disclosing it? State when, where and what he said.” Again, the witness having testified that she was the defendant’s step-danghter, and had lived with him as her guardian from the age of eight or nine years to the year 1842, during which time he had treated her very affectionately, was also permitted to be asked by the state : “ If, in any of his antecedent conversations, he (Tourney) offered property, or any other advancement to you, in order to attach him to you, say so ?” Again, the following question was permitted to be put to the same witness: “ If, at any time, subsequent to the transaction, he (Tourney) said anything about what punishment the laws of Mississippi would inflict on him, or you, or both Instate it all.” These questions were answered affirmatively.
It is well settled that in the inquiry into the nature of a transaction, whatever was said by both parties, as well as what was done during the continuance of the transaction, is admissible.1 Roscoe’s Cr. Ev., 22. But in this case the objections are directed to the form of the questions, upon the ground of their being leading questions.
It is often extremely difficult to distinguish such questions as should not be allowed because of their leading tendency, from those which, though in form leading, in effect only draw the mind of the witness to the subject of inquiry. But, while it is impossible to lay down any fixed rule, which will serve in all cases, there are yet certain established rules upon the subject of leading questions, which afford a good test by which to discriminate in cases not very doubtful. For instance, that is a leading question which suggests to the witness the answer desired.2 1 Stark. Ev., 124; 2 Phill. Ev., 722; The People v. Mather, 4 Wend., 249. And that is also a leading question which assumes a fact to be proved, which is not proved. A question is also leading which, embodying a material fact, admits of an answer by a simple negative or affirmative. The latter constitutes an argumentative or pregnant cause of interrogation, which the law holds objectionable.3 1 Greenl. Ev., § 434.
[312] On tbe other hand, however, there are exceptions to the rule,1 which forbids leading questions to be put to a witness in bis examination in chief; as when he is manifestly reluctant and hostile to the interest of the party calling him,2 or when he has exhausted his memory3 without stating the particulars required, where it is a proper name, or other fact, which cannot be arrived at by a general inquiry, or when the witness is a child of tender years, whose attention cannot be otherwise called to the subject matter.4 Moody v. Rowell, 17 Pick., 498.
It is also to be observed upon this subject, that much discretion is confided to a court in regulating and controlling the examination of witnesses, which is to be governed by the circumstances of each case;5 and that some courts have gone so far as to hold that the subject, under what circumstances a leading question may be put, is a matter resting in the sound discretion of the court presiding over the examination, and is not a matter upon which to base a motion for a new trial, or which can be assigned for error. Greenl. Ev., § 435; 17 Pick., 498 ; Stratford v. Sanford, 9 Conn. R., 275.
In order the better to scrutinize the character of the questions propounded in this case to the witness, Mary Polkes, we must bear in mind the state of the evidence at the different periods when they were severally proposed to her. Before the first question now objected to was asked, it had been shown that about seven months had elapsed between the time when the act of violence was alleged by her in her testimony to have been committed, and the finding of the indictment, which, for all that appears, was the first disclosure of the offense charged. It was, therefore, a material fact for the state to explain satisfactorily the cause of this long concealment by Mary Folkes, of the enormity alleged to have been perpetrated upon her. A sufficient [313] explanation of this long silence might be established by proving that the defendant dissuaded the witness from disclosing the deed by promises or threats, or altogether prevented it by a removal from her friends. It had already appeared in evidence, that, from year to year from a very early period of the orphanage of the witness, he had with constant assiduity insinuated himself into her confidence, and it was fair to presume that by the accomplished arts of such a deliberate scheme of remorseless and calculating villainy, he had succeeded in becoming the master and tyrant of her mind, and rendered her the slave either of his promises or threats. Under these circumstances, the witness is asked to reply whether the defendant dissuaded her from disclosing the act, and also whether he informed her what punishment the laws of Mississippi would inflict upon either or both of them in consequence of it. It is clear that both of those questions embody a material fact in the case, and are capable of a conclusive answer affirmatively or negatively. They are likewise interrogatories pregnant with circumstances indispensable to be proved for the success of the prosecution. Had the witness simply rejoined that the defendant did dissuade her from disclosing the matter, and did inform her that the laws of Mississippi affixed a punishment upon her for her part in the transaction ; such answers, in view of the high degree of abused confidence already shown to repose in the mind of the witness towards the defendant, must have most satisfactorily accounted for the long delay in bringing the dark atrocity to the exposure of light. But, while the principle of law fortunately is fixed, that it being often necessary, it is, therefore, admissible to bring the mind of a witness into contact with the subject of inquiry, especially when a witness is examined as to any conversation or admission ; still it is also a principle of law equally fixed, and beyond the control of the indignation of public justice, that, in such questions, the witness should not be prompted to give a particular answer, or be asked any questions to which the answer “Tes” or “No” would be conclusive. 1 Stark. Ev., 124; Nicholls v. Dowding, 1 Starkie’s C., 81; opinion of Lord Ellenborough. It is undoubtedly more convenient to ask a witness whether such a thing was said or done; and questions so [314] framed might, in many cases, be asked without danger of perjury, even involuntary, and we do not deny that such was the result in the very case under consideration ; and there are also instances when such leading questions are proper, as have been before alluded to; but, in ordinary cases, it is certainly most consistent with fairness and justice, both to the witness and the defendant, to ask the witness what was done, and what was said, rather than whether a particular and material thing was done and said. "We are compelled, therefore, to the conclusion that the questions propounded to Mary Folkes, and which have been examined, conform to the legal definition of leading questions.
It comes next in order to inquire whether there were any of. those peculiarities surrounding this witness which warranted leading questions to be asked in the direct examination. It does not appear that the witness was hostile to the interests of the state in the prosecution. On the contrary, every witness so unfortunately situated as this one was, must be presumed, if supposed to indulge any sentiment upon the subject, other than a desire to simply state the facts of the occurrence, to entertain deep feelings of profound indignation and horror towards her violator. Keeping in mind that the witness had already deposed as to the perpetration of the actual violence at the point of time when the questions objected to were propounded, it necessarily became a subject of great moment to her reputation and good fame to vindicate her purity of mind and chastity of heart. It is not unreasonable to conceive that any one so unfortunate might be willing to adopt and assent to whatever might be suggested for her own benefit; and it is wisely provided, that whenever a witness, from peculiar situation, has, or upon interrogation, shows a bias in favor of the examining party, a court should prohibit leading questions, even upon cross-examination. Further, the facts sought to be obtained from the witness were not such as could not significantly be pointed to by general interrogations, or which could not have been extracted from the witness by a skillful and legitimate mode of interrogation. And lastly, upon this branch of the subject, while it may with propriety be inferred that the witness was very naturally confused, and perhaps confounded, by the peculiarity of her position, in being re-[315] quircd to testify in public to facts so repugnant to female delicacy, it yet appears that the most dreaded and abhorrent details had been communicated; and it does not appear from the course of examination that repeated unsuccessful efforts had been first attempted in the proper mode to call forth what was supposed to exist in point of fact. In conclusion, nothing appears to show that the purposes of justice required the exercise of the discretionary power to vary the general rule controlling direct examinations, but rather the contrary.
It having been determined then, that leading questions were addressed to this witness, and that they were not essential to the ends of justice in this substance, it remains solely to inquire in this connection, whether this court will undertake to interfere with the discretionary power which is admitted to subsist with the courts who preside over the examination of witnesses.
It is true that it has been held in the nisi prius courts of England, that the rules of evidence are exactly the same in civil and in criminal cases, and that in both, it is in the discretion of the judge how far he will allow the examination in chief of a witness to be by leading questions, or, in other words, how far it shall assume the form of a cross-examination.1 Regina v. Murphy and Douglas, 8 C. & P., 297. But the decisions above quoted from this country, wherein it was held that the matter of judicial discretion respecting the examination of witnesses, was not such as upon which to base an application for a new trial, or which can be assigned for error, were made in civil and not in criminal cases. Yet, in the case of Duncan v. McCullough, Admr., 4 Serg. & Rawle, 482, which was a civil action, the supreme court of Pennsylvania admitting the rule, that the manner of examining witnesses as a matter very much in the discretion of the court presiding upon the trial, intimate that they would entertain the question, whether that court would reverse for error on a point in which the law permits the court below to exercise their discretion, provided it appeared that there had been any abuse of discretion. In the case of The People v. Mather, 4 Wend., 247, which was the case of an indictment for a conspiracy in the abduction of William Morgan, the court, [316] while it also admits the doctrine that considerable discretion is left to a judge who presides at a trial to control and regulate the examination of witnesses, and that appellate courts should cautiously avoid encroaching upon the proper exercise of this discretion, yet held, that if an established rule of law has been violated, the party injured has an undoubted right to belief, and that the court would feel no reluctance to grant it. The rule thus laid down by the Supreme Court of New York seems most consonant to the object of public justice, which is more the protection of the innocent than the punishment of the guilty.
Upon other points relied upon in the case, it now becomes necessary to speak but generally.
■ In regard to evidence of the actual guardianship of the defendant over the person of Mary Folkes, the chief witness, it was, perhaps, only necessary to have produced the copy, or a certificate of the grant of letters. This would have been enough to have established the existence of such guardianship during the minority of the ward, unless ‘the contrary was made to appear by proof of a resignation or removal from the trust. Yet, I am not prepared to say, that the state could not be permitted to anticipate any such presumption, and establish the continuance of the guardianship up to any period necessary to be shown by means of the records of the probate court granting the letters.
Evidence was introduced as to the good fame of the person violated. This was competent, because she was made a witness in the cause. The party ravished is a competent witness to prove the fact, but the credibility of her testimony must be left to the jury. It is legitimate to support her credibility by evidence of her good fame, or to attack it by evidence of her evil fame. Such evidence tends to show that the connection with the woman was had against or with her consent. 4 Bl. Com., 213.
In consequence of the inadmissibility of the questions propounded to the chief witness, and the objection to them by the defendant upon the trial below, the judgment must be reversed, and a new trial awarded by the circuit court of Claiborne county.