State v. Hobbs

• Citation: 172 N.W.2d 268
• Decision Date: 12 November 1969
• Docket Number: No. 53360,53360
• Court: United States State Supreme Court of Iowa
• Parties: STATE of Iowa, Appellee, v. George Bert HOBBS, Appellant.

Page 268

172 N.W.2d 268

STATE of Iowa, Appellee, v. George Bert HOBBS, Appellant.

No. 53360.

Supreme Court of Iowa.

Nov. 12, 1969.

Donielson & Pletz, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Larry Seckington, Asst. Atty. Gen., Raymond A. Fenton, County Atty., and James McKeon, Asst. County Atty., for appellee.

MASON, Justice.

Defendant George Bert Hobbs was indicted, tried and found guilty of robbery with aggravation contrary to sections 711.1 and 711.2, Code, 1966. The State charged defendant and three others with robbing a Des Moines grocer at gunpoint. Defendant was tried separately.

Defendant's appeal presents solely the question of exclusion of evidence offered bearing on his reputation as to certain character traits.

The incident giving rise to the criminal charge occurred about 7:30 p.m. April 13, 1968, while Joseph J. DeSio and his two sons, Tom and Joe, were working in Mr. DeSio's brother's store. As they were cleaning up before closing, two men entered the front of the store; one pointed a gun at Tom and said, 'This is it.' Tom called his father from the back room and as Mr. DeSio came to the front of the store defendant pointed a gun at him. Mr. DeSio told Tom to give the men what they wanted. As directed by his father, Tom handed over a sum of money, something in excess of $227. The men left the store through the back door, drove away and defendant was later apprehended and identified as one of the robbers.

I. Defendant assigns as errors the court's sustaining objections to testimony of defendant's general reputation and its striking testimony offered of negative evidence to show defendant had a good reputation.

A defendant in a criminal case may elect to put his character in issue by producing evidence as to his good character as bearing on the probability or nonprobability of his guilt of the crime charged. This principle is based upon the philosophy that a man of good character would not be likely to commit the crime of which he is accused. State v. Sterrett, 68 Iowa 76, 78, 25 N.W. 936, 937; State v. Hall, 259 Iowa 147, 157, 143 N.W.2d 318, 324; and 1 Conrad, Modern Trial Evidence, section 173.

In Iowa this may be done by defendant showing his good character by proof of his real character--those peculiar qualities which the individual is supposed to possess which distinguish him from others and denote what a man really is, not what he is reputed to be--or of his general reputation--which is based on speech of his associates and is the sum of opinions generally entertained concerning what is reputed or understood to be the estimate of a person's character in the community in which he moves or resides. State v. Poston, 199 Iowa 1073, 1074, 203 N.W. 257, 258; State v. Hartung, 239 Iowa 414, 426, 30 N.W.2d 491, 498; State v. Case, 247 Iowa 1019, 1024, 75 N.W.2d 233, 237; and State v. Scalf, 254 Iowa 983, 985--986, 119 N.W.2d 868, 869. See also 6A Words and Phrases, Character, pages 242--247.

Evidence of good character offered by defendant whether by direct proof or by proof of general reputation must relate particularly to the trait of character involved in the crime alleged. State v. Ferguson, 222 Iowa 1148, 1161, 270 N.W. 874, 882, and citations; State v. Case, supra, 247 Iowa at 1024--1025, 75 N.W.2d at 237, and citations; State v. Scalf, supra, 254 Iowa at 988, 119 N.W.2d at 871; and State v. Hall, supra, 259 Iowa at 157, 143 N.W.2d at 324.

In a charge of robbery or larceny the traits involved are honesty, integrity, and good citizenship. State v. Case, supra, 247 Iowa at 1025, 75 N.W.2d at 237; Dean Mason Ladd, Techniques and Theory of Character Testimony, 24 Iowa L.Rev. 498, 528. If the charge is robbery with aggravation the further specific traits of peacefulness and nonviolence are also relevant. All have a bearing on the probability or nonprobability defendant committed the crime charged.

It is to be remembered we are speaking here of 'character' and 'reputation' as bearing, not on the credibility of a witness, but on the probability or nonprobability of a defendant being guilty of the crime with which he is charged. For this purpose the State cannot offer any evidence unless the defendant puts the matter in issue. State v. Hartung, supra, 239 Iowa at 426, 30 N.W.2d at 498.

II. It is defendant's attempt to show moral character by proof of his general reputation in the community where he lived on and prior to the date of the alleged crime that gives rise to his first assignment of error.

In State v. Scalf, supra, 254 Iowa at 987, 119 N.W.2d at 870, and again in State v. Hall, supra, 259 Iowa at 158, 143 N.W.2d at 324, we quote this from Dean Ladd's article in 24 Iowa L.Rev., supra:

'Even reputation must, be admitted in general in a community rather than based upon a limited class. While it is not necessary that a character witness know what the majority of the people of a neighborhood think of a person, he must know of the general regard with which the party is commonly held.

'It is the general concurrence of a great number of people reflecting the sentiment towards the party whose character is subject to inquiry that is necessary to establish a reputation and to warrant its use as evidence. * * * The requirement that the reputation be broadly general rather than that of a particular group, such as members of a church, lodge, or the police, again emphasizes the effort to get away from a secularized and consequently, biased estimate of character. Reputation testimony is based upon the hearsay of a community and although hearsay is held inadmissible to prove other facts it becomes the very source of reliability for this type of proof.'

When introducing reputation evidence as a means of proving defendant's character strict foundation requirements must be met. Several evidentiary facts must be established before a witness may testify as to what he has heard concerning defendant's reputation. These include: (1) The background, occupation, residence, etc., of the character witness, (2) His familiarity and ability to identify the party whose general reputation was the subject of comment, (3) Whether there have in fact been comments concerning the party's reputation for a given trait, (4) The exact place of these comments, (5) The generality of these comments, many or few in number, (6) Whether from a limited group or class as opposed to a general cross-section of the community, (7) When and how long a period of time the comments have been made. Dean Mason Ladd, Techniques and Theory of Character Testimony, supra, 24 Iowa L.Rev. 518--529.

Precise formulation of the questions addressed to the witness is necessary to meet these foundation requirements.

III. William Gabrielson, Jr., the first of three character witnesses called by defendant, testified he knew George Hobbs approximately ten years before when Herman Olson took him in and raised him but not personally until he employed defendant from February until October 1967. He further indicated he was familiar with the defendant in relationship to the entire community around him. At that point he was asked, 'Could you tell us whether or not you are familiar with his general reputation throughout the community and in the general area?' Objection was interposed that the question was incompetent and immaterial. The trial court sustained the objection.

The question was directed to the witness' knowledge of the general reputation of the defendant for moral character. It was not directed to his personal knowledge.

The question was objectionable on grounds insufficient foundation had been laid. The witness could not address himself to the question of his familiarity with defendant's reputation absent a showing comments had been made to him about defendant's reputation. How many comments, their type, place, time, duration and representative nature all were needed; none had been established. See specifically in this regard State v. Scalf, supra, 254 Iowa at 986--987, 119 N.W.2d at 869--870, where an almost similar foundation was laid and similar question asked witness. This court affirmed the trial court's sustaining of the objection on ground the witness had laid no foundation.

The objection though general in nature was sufficient. '* * * (W)hile an objection must be specific when overruled, there is a difference when the objection complained of is sustained. In the latter case, if the question is objectionable on any ground, the sustaining of it is not error, even though not specific.' Jettre v. Healy, 245 Iowa 294, 300, 60 N.W.2d 541, 544. As stated in McCormick on Evidence, section 52, page 118, 'If the trial judge Sustains the general objection, the upper court is again charitable toward the ruling. When evidence is Excluded upon a mere general objection, the ruling will be upheld, if any ground in fact existed for its exclusion.' See also State v. Hall, supra, 259 Iowa at 158--159, 143 N.W.2d at 324, and citations.

An attempt was again made by counsel to lay a sufficient foundation for a statement from Mr. Gabrielson as to defendant's general reputation. More information was introduced concerning witness' background, occupation, length of time in the community, and acquaintance with defendant, but no further information was elicited establishing various types of comments involving defendant's reputation had been many in number, exact place of these comments, duration, and representative character. Mr. Gabrielson made reference to only one comment directed to him concerning defendant. The witness was then asked, 'Mr. Gabrielson, based on your ten-year knowledge of George Hobbs in the area, could you tell us if you have formed an opinion as to whether or not he is--what his reputation is for peacefulness?' Timely objection was interposed specifically on the grounds the question was in violation of State v. Scalf, and State v. Hall, both supra.

Again the objection was correctly sustained. First, omission...