Juan Navarro v. The State, 24 Tex. Ct. App. 378

Hurt, Judge. In this case there was no motion to quash the indictment; but its sufficiency was questioned by a motion in arrest of judgment. Without noticing separately the several grounds upon which it was based, it suffices to say that the indictment is not obnoxious to any one of them. The trial was had upon a charge of procuring an abortion, by an unlawful assault upon the prosecuting witness, appellant’s wife, the assault being alleged to have been made with the •design of producing that effect. To prove the assault and the intent, the injured party, the wife of appellant, was introduced by the State.

Under the statute, she was clearly a competent witness. Testimony was given by the said witness to the effect that, in a fit of jealousy, appellant had kicked her on the abdomen, accompanying the act with words to be noticed hereafter. She further testifies that, about nine days thereafter, she gave birth to a still born child, its skull being crushed or mashed in, and in three pieces; that, after the lapse of another nine days, another was born, and that decomposition had so far set in that its sex was not distinguishable.

This witness was also permitted to testify, over objection, that the said abortion was the result of the kick described. It is sometimes difficult to fix the point at which the competency of a" non-expert witness, to assign a certain cause to a named result, ends. Assuredly, if one receive a blow which leaves an immediate marked impress that is appreciable by the senses of him who receives it, or that is in a like manner made sensible to bystanders, neither the injured party nor the onlooker need be an expert to qualify him to testify that the injury received was the result of the blow given.

But, when a claimed result becomes so remote that conclusion and deduction are necessary to connect it with a cause, then the non-expert witness may only state physical facts and symptoms experienced, leaving the conclusion from them to the jury trying the cause. We are of opinion that the testimony was' inadmissible, it coming within the last named class, and the witness not having been qualified as an expert.

For the error in admitting it, however, we would not feel authorized to reverse the judgment, had the witness gone on to state the facts upon which she based her opinion; for then the jury would have been enabled to compare and judge of the correctness of the conclusion. In her testimony there is an absence of such facts. True, she states that she “had felt life in the child before I (she) was assaulted by the defendant;” but she does not say at what length of time before, nor that she did or did not ■feel such sensation thereafter.

No "symptoms were testified to by her or others after the receipt of the kick, from which a conclusion as to its effect might be drawn. Then, again, the testimony fails to show definitely, or with reasonable certainty, as to whether the skull of the first child delivered was reduced to three pieces by violence, or whether it had fallen apart at the sutures, by reason of the decomposition that had set in. These facts were susceptible of proof, and should have at least been made reasonably certain. Opinion delivered November 26, 1887.

In response to a leading question put by the district attorney (she having evaded other methods of- eliciting the testimony sought) the same witness answered that appellant said, as he was in the act of kicking her, “if that is my child, put it in my hands.” To the bill of exceptions thereto, the trial judge appends an explanation to the effect that he had permitted this form of question because the witness was ignorant of the language and generally dull, and that she had shown herself to be an unwilling witness.

Leading questions are permissible, even in a direct examination, “where the witness appears to be hostile to the party producing him, or in the interest of the other party, or unwilling to give evidence.” (1 Greenleaf on Ev., sec. 435.) The testimony and appended explanation of the bill of exceptions show the existence of all these three elements which remove the bar to the leading questions.

The witness did not institute this prosecution; in fact, she was evidently “hostile” to it; she forgave, as only woman can (as is evidenced by her visits ‘and ministrations to her husband in the jail to which a prior offense had consigned him),-even up to the day she was prostrated by premature confinement; that she was “unwilling” to testify is manifest from her evasions of the very questions propounded to elicit this evidence. Under these circumstances, the form of the question was clearly allowable, and the evidence was material, as bearing upon the intent.

For the error noticed, the judgment must be reversed and the cause remanded. Reversed and remanded.