
    People, Plaintiff and Appellee, v. Ríos, Defendant and Appellant.
    Appeal ftom thé District Court’ of Aguadillk' in a Prosecution for Violation of Section 61 of the Excise-Tax Law.
    No. 1820.
    Decided February 20, 1922.
    Appeal&emdash;Trial de' Novo&emdash;-Complaint.&emdash;'When 'an appeal is taken -to a- district . court in a criminal action-tlxe.original.complaint continues to-,toe. the basis . of. the.prosecutiop. in the, trial,■(!,& novo; therefore it,is not,ije,c8s^ary that , it should be sivo.rn.to toy the district, attorney. ..
    Evidence&emdash;Leadinu’ Question&emdash;Discretion Op Court. eral rule against"leading:'questions,' the inatter is largely ivithin tho discretion of the trial court., which -may, -in criminal-as well-as in civil eases, all,ow such, questions to toe put to. a witness when it .deems such course necessary or advisable, or refuse to allow, such questions when _ the. circumstances do not seem to require such mode of examination; and in thq absence qf a palpable abuse of discretion resultiil^ in' prejudice' to the' complaining party, reversible error can not toe predicated upon tho action of the court. the gen-
    Id.-Discretion of Court.-Courts have discretion to allow a‘party to present evidence after the said.party has rested..
    The facts are stated in the opinion.
    
      Mr. J. Valldejuli for the appellant.
    
      Mr. José É. Figueras, Fiscal, for the appellee.
   Mr. Chief Justice del Toro

delivered the opinipn of the court.

Justa Ríos was .charged; with having in. her possession and custody .a--still .for ■distilling’' alcohol which-.-waS not -registered in the -Treásury-Department'of!Porto1 Rico. •i‘She: wasi convicted dm the Municipal Court of Aguadillk and ‘appealed to1 the District' Court of A'ghadilla in which' 'she was' also córivictéd/ whereupon she appealed to this court".' In' her brief 'she assigned the following, errors'!: That the complaint was not sworn to Í>y the,.district attorney,;, that the. district attorney was allowed to ask leading questions; that certain evidence was 'permitted' to' hfe introduced'in An irregular manner, and’that' she1 was "coiiyi'etedi. on Insufficient'evidence.'

1. The 'fi-rs’t' assignm¿nt-i'ss'without'merit!' -'ThP' appellant' was pró&ecuted under ¡a'--cdhip'lainf> ma'de-'-''inrthé Ürtoiicipal-court,- kndtsrich-a eoihplaiht-heed--nbt ibe! si^iaed '6ir '-swbrnito1 by tlie district attorney.' When an appeal is taken to a district court the original complaint continues to be the basis of the prosecution in the trial de novo. See section 103 of the Code of Criminal Procedure.

2. The record contains the following:

‘ ‘ The district attorney put the following question to the witness: ‘On or about that date, January 25, 1921, did you have to see her (the defendant) for any reason?’ The defendant’s attorney immediately objected to the form of the question as being imperfect and amounting to what is known as a leading question. The district attorney replied that he had to fix the date, and repeated the question: ‘Did you have to see the defendant on that day?’ The defendant again objected to the question. The court admitted the question and the defendant took an exception.”

Iu the appellant’s brief it is insisted that the question was leading. In the ease of Stringfellow v. State, 26 Miss. 157, the court said:

‘‘A leading question has been defined to be one which directly suggests the answer which is desired, or which embodies a material fact and admits of an answer by a simple negative or affirmative, though neither the one nor the other be directly suggested: 2 Phill. Ev. 401; 1 Greenl. 553. But in the examination of a witness, if the object be to direct his mind with the more expedition to what is material, and if the question propounded relate merely to introductory matter, it should not be objected to, although in form it be leading. Hence it is not unfrequently a matter of great difficulty to distinguish between those questions which are not to be tolerated because they are leading and those which are such in form but in effect are only calculated to lead the mind of the witness to the subject of inquiry.” 59 Am. Dec. 248-249.

See the note to Turney v. State in 47 Am. Dec. 82.

Applying the foregoing jurisprudence to this case, the question referred to could be classed as a leading question, as it could be answered by an affirmative or a negative, but it is clear that the object was to lead the mind of the witness with, tlie more expedition to what was material, or to what had taken place between the witness and the defendant.

Under snch circumstances the question was admissible, and although there may be some doubt regarding the absolute propriety of it, the error that may have been committed would not be sufficient to justify a reversal of the judgment appealed from. No prejudice to the defendant has been shown and at all events it can not be concluded that the court abused its discretion.

“Notwithstanding the general rule against leading questions, the matter is' largely within the discretion of the trial court, which may, in criminal as well as in civil cases, allow such questions to be put to a witness when it deems such course necessary or advisable, or refuse to allow such questions where the circumstances do not seem to require such mode of examination; and in the absence of a palpable abuse of discretion resulting in prejudice to the complaining party, reversible error cannot be predicated upon a ruling of the trial court as to allowing leading questions.” 40 Cyc. 2427-2429.

3. The following also appears in the record:

“Here the district attorney informed the court that he had concluded with his evidence, or, to quote him literally, ‘the district at torney rests.’ Thereafter he said; ‘Now I offer in evidence a certificate of the Treasurer of Porto Rico signed by José E. Benedicto and bearing the seal of the Department to the effect that that apparatus is not registered in the office of the Treasurer in the name of Justa Rios * *
“Attorney for the defendant: ‘I object to the admission of that evidence. I object to the admission as documentary evidence of the certificate offered by the district attorney issued by the Treasurer of Porto Rico regarding the registration of the still involved in the prosecution, because the district attorney has not attempted to prove by the government’s witnesses that they asked the defendant whether or not the said apparatus was registered; because the testimony does not show that she was asked to produce her license for the possession of the said still, and because the offer of this documentary evidence. at this stage of the" case, without having established its connection with the case, is a surprise to the defendant and to the court; therefore the court is requested to reject the' said evidence because it is offered unseasonably and in an irregular manner.’
“Judge: ‘The court overrules the objection of the attorney.’
“The defendant took an exception.”

The appellant insists in her brief that after the district attorney announced that he rested he had no right to offer the certificate in evidence. Admitting that the district attorney announced that he rested, yet the court had discretion to act as it did and we do not see that it abused its discretion in this case. See People v. Julián, 18 P. R. R. 905.

Referring to this assignment of error the appellant says: “The court erred also in admitting a negative certificate of the Treasurer of Porto Rico which he is not authorized by law to issue * '* This objection was not duly raised in the district court. The judge who presided at the trial was not given an opportunity to consider it and, in accordance with settled principles, it should not be taken into account now by this court. See the case of Falero et al. v. Falero, 15 P. R. R. 111.

4. The evidence was wholly contradictory. That for the government, consisting of the testimony of two insular policemen and the certificate to which we have just referred, tends to show that the still in question was seized by the policemen at the very moment when the defendant was coming out of her house with it in an attempt to hide it in a pea patch, and that the defendant liad not the still registered in her name in the office of the Treasurer of Porto Rico. The evidence for the defense tended to present the defendant as a victim of the policemen. It purported to show that when they went in the yard of the defendant’s house they were carrying the still and then urged the defendant to tell them to whom it belonged, and that as she said that she did not know, they filed the complaint against her.

The trial judge, who saw and heard the witnesses while they were testifying, believed those for the government, and there being no showing that he was influenced by passion, .prejudice or partiality, or committed manifest error, his decision should be sustained. The conflict in the evidence being thus adjusted, there is no doubt that the evidence was sufficient.

The judgment appealed from must be

Affirmed.

Justices Wolf, Aldrey and Hutchison concurred.  