58 Iowa 208 | Iowa | 1882
The State also introduced one D. B. Gottschall, who testifidd that he was somewhat acquainted with James Spencer, and knew him for two years in Jasper county, but did not know his general moral character in that county before he came to Polk county. The court thereupon said: “You can ask him whether, during all that time, he ever heard his character called in question. I do not decide that that is conclusive proof, but'it is good proof tending to show a man’s good character. If you have associated and done business with the same people, and never heard his character called in question, you may take it as good evidence tending to establish his character. It is the strongést kind of evidence in that direction.” The defendant excepted to this statement of the court. The State then asked the following question: “You may state whether, while yon'knew Mr. Spencer in Jasper county, you ever heard anything against his reputation or character.” To this the witness answered: “I did not.” Respecting this evidence the court instructed the jury as follows:
“ When there has been testimony introduced for the purpose of showing that a witness who has testified in a case has a bad moral character and a bad reputation for truth, and witnesses are introduced to rebut such testimony, and they testify that they have lived in the same neighborhood with the witness for four, five, or six years, and show that*211 they have mixed, done business and associated with the same people that the witness has lived among for five or six years, and then testify in substance that they never heard anything against the witness’ moral character, and that they have never heard his reputation for truth called in question, that is among the best of evidence tending to show that the witness has a good reputation in both of said respects, and such testimony is entitled to just such weight and credit, and just such weight and credit only, as you may think it entitled to.”
To this instruction the defendant excepted. The defendant assigns as error the several actions of the court above objected to. It must be competent for one, whose reputation for general morality and truth is assailed, to sustain his character by showing that those having the best opportunity of knowing his reputation have heard nothing said- respecting his character. Otherwise, the person, who has so far lived a blameless life as to provoke but little discussion respecting his character, would oftentimes be utterly unable to support his character when assailed.
We are inclined to think, however, that the court was not strictly correct in characterizing this evidence as the best evidence of reputation. It cannot be fairly said that proof that one’s neighbors have never heard his character canvassed, is better proof of his good reputation, than proof that his neighbors generally speak in terms of commendation of his character. All that can properly be said of the kind of negative proof under consideration is, that it is competent proof of good reputation and should be accepted and weighed by the jury. Still, taking the whole action of the court together, we are unable to see how the defendant could have been prejudiced by it. The statement during the trial that the evidence proposed was the best evidence, and the direction to the jury that it was amongst the best evidence, was the statement of a mere abstraction, having no practical bearing upon the ultimate decision, so long as the court left to the jury the
IY. The witness, Spencer, was asked, upon cross-examination, what was his condition as to being sober when he testified before the grand jury. The State objected to the question as not proper cross-examination, and the objection was sustained. The appellant insists that this examination was proper, because the witness admits that he had refreshed his recollection by reference to his testimony before the grand jury. Upon the contrary, the witness testified that he had not refreshed his memory by his testimony before the grand jury, and'that he had not seen the minutes of that testimony since he gave it.
The instructions given properly reflect the law of the easel Those asked and refused, so far as they embody the law, were embraced in the instructions given. We discover no error in the case.
Affirmed.