State v. Keul , 233 Iowa 852 ( 1942 )

I respectfully dissent from Division V of the foregoing opinion.

I think it was proper for the prosecuting attorneys to ask appellant's character witnesses if they had heard reports or rumors of violence by fellow union officials in connection with the milk strike, which, according to the reports, had been condoned or approved by appellant. Such reports would be inconsistent with appellant's good reputation as a law-abiding citizen, to which these witnesses had testified. This accords with the well-established rule which the majority recognizes in the second paragraph of Division V.

In any event, questions regarding appellant's reported approval of violence in the milk strike were not prejudicial to appellant because the witnesses all said they had heard no such reports. The answers to these questions were therefore all favorable to appellant. Annotation 71 A.L.R. 1504, 1539, 1540; State v. Rowell, 172 Iowa 208, 214, 221, 154 N.W. 488; State v. Richards,126 Iowa 497, 501, 102 N.W. 439; State v. Tippet, 94 Iowa 646,650, 651, 63 N.W. 445; State v. McGee, 81 Iowa 17, 19,46 N.W. 764.

Counsel for the State asked some of the character witnesses whether, if they had heard reports that appellant had condoned acts of violence in the milk strike, that would change their opinion of his reputation. I agree that such questions are not to be approved and should not have been asked. The witnesses were thus asked for an opinion upon a hypothetical state of facts not in evidence. But, since the State had a right to inquire whether the witnesses had heard about the reports, the mere asking of this hypothetical question is insufficient basis for reversal. It introduced no prejudicial matter before the jury. All of the character witnesses made it plain they had heard no reports unfavorable to appellant. This was emphasized on redirect examination of some of these witnesses.

The annotation in 71 A.L.R. 1504, 1519, states:

"Trial courts are clothed with a broad discretion in respect to permitting the cross-examination of the defendant's character witness as to rumors or reports of particular acts or offenses. * * *

"And the extent of such cross-examination rests largely in the discretion of the trial court."

The majority recognizes that the trial court has considerable discretion in a matter of this kind. I think there was no such abuse of that discretion here as warrants a reversal.

MILLER, J., joins in this dissent.