The appellant, a man 34 years old, was charged with raping a 13-year-old girl. Upon trial by jury, he was found guilty of the included charge of assault and battery with intent to commit a felony.
On this appeal, he contends that the trial court erred (1) in refusing to permit his attorney to read from a certain medical treatise upon cross-examination of a doctor witness, (2) in permitting the prosecuting attorney to ask the prosecuting witness certain leading questions, (3) in admitting in evidence an alleged written confession of appellant, and (4) in denying appellant's request for continuance after the State, during the trial, amended its affidavit changing the date of the alleged crime from July 27, 1951, to July 30, 1951.
We will consider these four contentions in the above order of presentation.
Contention No. 1. In the course of the trial, Dr. J.W. Visher testified that he examined the girl about 12 days after the alleged act and found an apparently healing tear near the vagina, between the vagina and the rectum. Upon cross-examination, counsel for appellant sought to show that such tear could have been caused from things other than attempted rape. During his inquiry he asked the doctor if he was acquainted with "Herzog's Medical Jurisprudence." The doctor replied that he had never read the book. No other effort was made to establish the book as an authority. However, counsel proceeded to read from it and question the doctor concerning such quotations. The court sustained objections. We think the
Contention No. 2. The prosecuting witness, then 14 years old, was having understandable difficulty in describing the acts with which she charged appellant. The acts themselves had been described in general terms. The leading questions complained of concerned technical nomenclature. We cannot see wherein the appellant was harmed by the court's ruling. This court has recognized the propriety of relaxing the rule against leading questions in cases of the kind now before us. In the case of Polson v. State (1894), 137 Ind. 519, 523, 35 N.E. 907, 909, the defendant was convicted of assault and battery with intent to commit rape. He complained, as here, that the prosecuting witness was permitted to answer leading questions. This court there found that no harm resulted and used the following language:
Contention No. 3. Before the written confession was admitted in evidence, the trial court heard evidence on the question as to whether it had been obtained by fraud, fear, trickery, or improper inducement. That evidence was conflicting. It was sufficient to sustain the court's ruling. We cannot here weigh that conflicting evidence. Schuble v. State (1948), 226 Ind. 299, 79 N.E.2d 647.
Contention No. 4. During the direct examination of the State's first witness, the State asked and was
We find no reversible error in the record.
Gilkison, J., not participating.
NOTE. — Reported in 114 N.E.2d 771.