177 Iowa 321 | Iowa | 1916
“Good character avails, whether the evidence be direct or circumstantial. ... If the circumstances relied upon are ‘in doubt,’ a reasonable doubt of defendant’s guilt existing, the jury should acquit without evidence of defendant’s good character.”
In State v. Birkey, 122 Iowa, at 103, there was an instruction that:
“Where good character is shown, it is proper to be considered in determining whether a person bearing such a character would be likely to commit the crime in question, and might be sufficient in a doubtful ease to turn the scale in favor of the defendant.”
“That in passing upon the guilt or innocence of the accused, proof of good character constitutes an ingredient to be considered by the jury, without reference to the apparently conclusive or inconclusive character of the other evidence, and it is for the jury to determine what weight such evidence of character shall have with them. ’ ’
In State v. Beede, 151 Iowa, at 703, the defendant was convicted of the crime of procuring intoxicating liquors for one who was in the habit of becoming intoxicated. He complains that he was not permitted to.show good character in his defense, and we said:
“Of course, it is always permissible for the accused to show his general good character; but there was no attempt made in this case to do so. The questions asked the witnesses on character were as follows: ‘You may state what his (the defendant’s) habits are as to intoxicating liquors, industry, etc.’ ‘You may state what you know of Mr. Beede in regard to being sober, industrious. ’ Neither of these questions tended to show general good character, nor did they relate to any trait involved in this investigation. Beede was not on trial for being intoxicated or using intoxicating liquors.”
We say, in State v. Jones, 145 Iowa, at 178, that evidence of good character “tends merely to negative the evidence for the prosecution tending to show defendant’s guilt.”
In State v. Wolf, 112 Iowa 458, the court charged:
“If you find from all the evidence, facts and circumstances in the case, that defendants were of good moral character, and were of good reputation for chastity in the community where they resided, before the alleged commission of the offense, then you have a right to consider such fact, if you find it to be a fact, in determining whether the witnesses who have testified to facts tending to criminate them have been mistaken, or have testified falsely or truthfully. ’ ’
And we say that:
In State v. Wolf, at page 464, we said:
“It has been the repeated holding of this and other courts that, while good character is not a complete defense to a criminal charge, it is a defensive circumstance which may be shown for the purpose of rebutting the presumption of guilt arising from circumstantial evidence (State v. Turner, 19 Iowa 144), and that it should be considered by the jury, in connection with all the other evidence, in determining the guilt or innocence of the accused. State v. Donovan, 61 Iowa 278. It may be considered as tending to show ‘that men of such character would not be likely to commit the crime charged.’ State v. Ormiston, 66 Iowa 143. It should be considered ‘irrespective of whether the other evidence is conclusive or inconclusive, and it is for the jury to determine what weight such evidence shall have.’ State v. Gustafson, 50 Iowa 194; State v. Northrup, 48 Iowa 583; State v. Clemons, 51 Iowa 274.”
It is urged that this last is in violation of our holding in State v. Guidice, 170 Iowa 731. All that is germane in the Guidice case is that, while it may possibly not have been prejudicial, the county attorney should not have explained to the jury and apologized for it that the case had been brought to Mills County on change of venue, and that: •
“It was of no concern to the jury how the case came to be there, and no apology was due from anyone for its being there for trial.”
Against the statement asserting the belief of the prosecuting attorney, if is said that State v. Robinson, 170 Iowa 267, condemns what was done. Some language in the decision does. The real decision is that we will reverse where the prosecutor praises mob law and tells the jury, in substance, that, if the crime charged had been committed against the daughter of the speaker, the jury would be trying him for killing the defendant, instead of trying defendant for the
“After a careful reading of the whole record, we were compelled to read it again, to assure ourselves of what was in the evidence as distinguished from the opening statement of the district attorney.”
As to the claim that what was done here is condemned by People v. Fielding, 158 N. Y. 542, and a ease therein cited (Bessette v. State, 101 Ind. 85), we have to say that we do not believe the cases are in point, and that, if it be assumed they do reverse for an argument in any way like the one under consideration, we would not be inclined to follow them.
To this, the objection of defendant that it was leading and suggestive was sustained. This and quite a number of other questions were, in strictness, “leading and suggestive.” But on the waiving of the evidence rule involved, the trial judge has, of necessity, .much discretion. It appears in the record that the witness was a little over 11 years old, and the child with whom it was charged the father had had the incestuous relations. With the witness of this age, and in this situation, and with her father sitting there before her as a defendant, we are not prepared to say that the court did not rightly exercise its descretion in the premises.
YI. The exceptions to Instructions 15, 16 and 17 have no merit, and, at any rate, since a retrial must ensue, they may not be given again.
For the errors pointed out in Divisions I and II, the judgment must be reversed. — Reversed.