Opinion
No. 32848.
November 1, 1937.
APPEAL AND ERROR.
Alleged error in sustaining an objection to a question propounded to chief prosecuting witness was not ground for reversal, where record showed that immediately upon sustaining of objection witness nevertheless answered, confessing an inability to answer the question.
APPEAL from circuit court of Newton county. HON. D.M. ANDERSON, Judge.
W.I. Munn, of Newton, for appellants.
The court below committed error in excluding from the consideration of the jury the testimony of H.P. Davis, a witness introduced by the state on the trial of this cause, and on the cross-examination Mr. Davis was asked the following question: "Well her condition, physical condition was such, Mr. Davis, that she could not have sexual intercourse, could she?" and on the trial of the case the court excluded the answer of the witness from the consideration of the jury which is assigned as error and the appellants contend that in the light of all of the testimony that it was error to exclude his answer from the consideration of the jury.
W.D. Conn, Jr., Assistant Attorney General, for the state.
It is said that the court erred in not allowing the witness, H.P. Davis, on cross-examination, to answer a question which was evidently intended to bring out that Mrs. Davis was in such physical condition as that sexual intercourse would be impossible. There are three answers to this contention made by appellants:
(1) The witness was not shown to have been in possession of sufficient facts as that he would be entitled to give his opinion on that matter. It was not shown that he had any first-hand information and he was certainly not qualified as an expert.
(2) The record does not show that the witness could have answered that Mrs. Davis was in such condition as that she could not have indulged in sexual intercourse.
Mooreman v. State, 131 Miss. 662, 95 So. 638; Temple v. State, 165 Miss. 798, 145 So. 749.
(3) In spite of the ruling of the court sustaining the objection of the state, the witness testified that that was a matter he could not enlighten the court on.
The brief for appellants must have been prepared without an examination of the record, for the only error argued is the alleged error of the court in sustaining an objection to a question propounded to the chief prosecuting witness in regard to Mrs. Davis' physical condition, when the record shows that, immediately upon the sustaining of the objection, the witness nevertheless answered and stated as follows: "That is a question I could not answer anyhow."
Affirmed.