
    2379.
    Fountain v. The State.
    Indictment for misdemeanor; from Douglas superior court— Judge Edwards. November 24, 1909.
    Submitted February 21,
    Decided March 11, 1910.
    
      Roberts ■& Hutcheson, J. 8. James, for plaintiff in error.
    
      W. K. Fielder, solicitor-general, contra.
   Powell, J.

1. The plaintiff in error was prosecuted for using profane language in the presence of a female, the substance of the charge being that he had cursed her (the prosecutrix) for reporting his still to the Government. At the trial she testified to the transaction as laid in the indictment. The defendant’s counsel attempted to prove by her that a few days after the alleged transaction, she testified before a United States commissioner that the defendant was one of the best citizens of the county of his residence, and was a friend of- hers and of her family, and one of the best friends they had ever had. The court refused to allow the witness to be interrogated as to this testimony given before the commissioner. Held, error. The circumstance that the prosecutrix had thus testified as to the defendant’s standing in the community, and as to his friendship for her and her family, was inconsistent, to some extent at least, with the assertion of his having cursed her a few days before she gave this alleged testimony; and therefore was a fact tending to disprove his guilt.

2. Where an indictment charged the defendant with having used certain profane language in the presence of a female, it was error for the court to refuse — on the ground that the question was leading. — do allow the defendant’s counsel to read to a witness, who claimed to have been present at the time, the language alleged in the indictment, and ask him whether or not the defendant used that language or its substance. It is not a leading question to ask a witness whether or not designated language was used on a given occasion.

3. The other grounds of the motion for a new trial, so far as they are technically in form, are not meritorious. Judgment reversed.  