State v. Poston

• Decision Date: 07 April 1925
• Docket Number: No. 35663.,35663.
• Citation: 203 N.W. 257,199 Iowa 1073
• Parties: STATE v. POSTON.
• Court: Iowa Supreme Court

199 Iowa 1073

203 N.W. 257

STATE

v.POSTON.

No. 35663.

Supreme Court of Iowa.

April 7, 1925.

Appeal from District Court, Pottawattamie County; E. B. Woodruff, Judge.

The defendant was indicted, tried, and convicted of assault with intent to commit rape. After filing a motion for a new trial, which was overruled, judgment was entered, and defendant appealed. Reversed.Tinley, Mitchell, Ross & Mitchell, Kimball, Peterson, Smith & Peterson, and Thomas O. Tacy, all of Council Bluffs, for appellant.

Ben J. Gibson, Atty. Gen., and C. E. Swanson, Co. Atty., and F. E. Northrop, Deputy Co. Atty., both of Council Bluffs, for the State.

ALBERT, J.

[1][2] The first point raised in the case is that, in the cross-examination of the prosecuting witness, the defendant attempted to interrogate her as to whether or not she had not been a sufferer from melancholia, and also whether or not, on several occasions, she had not accused other persons of raping or attempting to rape her.

While we have, in numerous cases, said that the extent of the cross-examination of witnesses is largely in the discretion of the trial court, yet this discretion cannot be arbitrarily exercised. Neither is it at all times limited strictly to the matters brought out under direct examination. That this cross-examination should have been permitted is beyond the realm of dispute. The question is quite exhaustively discussed in the case of State v. Brooks, 181 Iowa, 874, 165 N. W. 194; also in Wharton on Evidence, §§ 544 and 545; People v. Evans, 72 Mich. 367, 40 N. W. 473.

[3][4][5] Defendant tendered several witnesses to show the good reputation of the defendant. Much confusion has arisen over the use of the words “good reputation” and “good character.” While for some purposes they are recognized as expressing the same idea, yet, fundamentally, “character” and “reputation” are wholly different. Roughly stated, character is what a man actually is, while reputation is what his neighbors say he is. The evidence in this case offered by the defendant has to do with what the general reputation of the defendant was in the neighborhood in which he lived. In an attempted cross-examination of a witness, who gives this line of testimony, the cross-examiner must be limited to the same field; that is to say, his cross-examination must be limited to the reports or rumors current in the neighborhood that would tend to negative the good reputation. Witness cannot be asked as to certain acts of misconduct which he himself knows, or, as stated by Wigmore on Evidence, vol. 2, § 988:

“There must be no question as to the fact of the misconduct, or the rule against particular facts would be violated; and it is this distinction that the courts are constantly obliged to enforce.”

Some of the questions asked by the prosecution herein impinge on this rule, but the most serious complaint made about this matter is not so much the infraction of this rule, but from adverse rulings on objection to the conduct of the prosecuting attorney, who persisted in asking questions along these lines in spite of the fact that the court ruled against him. We are unable to understand why prosecuting attorneys persist in thus infracting the well-established rules of practice. This court has repeatedly warned prosecutors about these dangers, and it seems rather strange that in spite of these warnings prosecutors persist in this practice. However, we presume that the field is so attractive that they cannot refrain from browsing therein if possible. The result, under such circumstances, is always the same as it is in this case. It puts into the record a reversible error and necessitates, on our part, the reversal of the case where, if more careful attention had been given to the well-settled rule, such action here would be unnecessary. This is made more flagrant in the present case than usual, because in the argument to the jury the prosecuting attorney, in spite of the adverse rulings of the court, said, among other things, to the jury:

“I have no apology to offer for the examination of the witness for the defense in regard to character. * * * I make no apology for any question that I asked any witness. * * * I had a right to ask any question which came into my mind which bore on the good character of the man, the good or bad character from the standpoint of morality, moral conduct, and I did so.”

It is apparent in this case, as in most such cases, that the prosecution realized that the matters about which they were inquiring would fall as a subtle poison against the defendant in the minds of the jury, and while they were not able to get the testimony into the case, except in an inferential way, they realized the advantage of such inference and sought to avail themselves of it. Without now stopping to quote from the cases, we hoped we had settled this question in the cases of State v. Scott, 194 Iowa, 777, 190 N. W. 370;State v. Moon, 167 Iowa, 26, 148 N. W. 1001;State v. Roscum, 119 Iowa, 330, 93 N. W. 295;State v. Kimes, 152 Iowa, 240, 132 N. W. 180, and the cases therein cited. We...