There is no merit in the exceptions taken by the appellant to such instruction. See State v. Ormiston, 66 Iowa 143; State v. Donovan, 61 Iowa 278; State v. Shultz, 177 Iowa 321, 322; State v. Bosworth, 170 Iowa 329; State v. King, 122 Iowa 1; State v. Bell, 206 Iowa 816. Many other cases could be cited on this proposition. In State v. Ormiston, 66 Iowa 143, 151, this court declared:
We have said it is proper to use prior out-of-court statements of a witness inconsistent with his testimony in order to impeach him. Use of prior statements consistent with his testimony may be appropriate to rehabilitate an impeached witness. See State v. Galloway, 187 N.W.2d 725, 728 (Iowa 1971); State v. Cordaro, 214 Iowa 1070, 1076-1077, 241 N.W. 448, 450-451; State v. Bell, 206 Iowa 816, 818, 221 N.W. 521, 522. The latter doctrine renders admissible evidence offered for the purpose of contradicting impeachment evidence, and that evidence is admissible on redirect examination and in rebuttal to show that there was no such inconsistency.
It is true that the State cannot corroborate its own witness by showing his prior consistent statements. State v. Bell, 206 Iowa 816, 221 N.W. 521; Walding v. State, 23 Ala. App. 185, 122 So. 296; Higdon v. State, 25 Ala. App. 209, 143 So. 213; Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594; Byrd v. State, 154 Miss. 742, 123 So. 867; State v. Johnson, 334 Mo. 10, 64 S.W.2d 655; Cupit v. State, 103 Tex.Crim. R., 279 S.W. 455; Russell v. Cavelero, 139 Wn. 177, 246 P. 25. However, the objection here urged to the effect that the purpose of introducing the statement of Gratien Ernaut was to corroborate and bolster the oral testimony being given by the witness on stand was not presented in the court below.
The witness stated: "Yes, I knew about that." In the case of State v. Bell, 206 Iowa 816, 824, 221 N.W. 521, 524, in commenting on the cross-examination of character witnesses, we said: "It is apparent * * * that the cross-examination of a character witness must be confined to reports and rumors in the community which affect the character of the defendant as to the particular trait involved." In this last cited case many Iowa cases are referred to bearing on this question.
Considering the above instruction in connection with instruction No. 8, it is apparent that the jury were clearly informed that all of the evidence, including that bearing upon the question of reputation, must be considered, and that they could not convict the defendant unless the evidence taken and considered as a whole proved beyond a reasonable doubt that appellant was guilty of the crime charged in the information. Instructions quite similar to No. 8 have been approved in the following cases: Armor v. State, 63 Ala. 173; State v. O'Callaghan, 157 Iowa 545, 138 N.W. 402; State v. Bell, 206 Iowa 816, 221 N.W. 521; State v. Tucker, 58 N.D. 82, 224 N.W. 878; Rhea v. State, 104 Ark. 162, 147 S.W. 463; Keys v. State, 112 Ga. 392, 37 S.E. 762, 81 Am. St. 63. Defendant's requested instruction which the court refused to give read as follows:
But, defendant argues, his moral character having been proven to be good, this was of itself sufficient to generate a reasonable doubt. He cites, among other cases, State v. Bell, 206 Iowa 816, 221 N.W. 521; and State v. Johnson, 215 Iowa 483, 245 N.W. 728. These not only do not support that claim, but an approved instruction to the contrary appears in the Bell case. It is said that the verdict was against the weight of the evidence and a new trial should have been granted on that ground. What we have said as to the functions of the jury answers this contention against appellant.
It is proper for the court to instruct the jury that punishment is for the court and that the jury has nothing to do with the punishment. Trimble v. State, 118 Neb. 267, 224 N.W. 274; State v. Lunsford, 163 Wn. 199; State v. Bell, 206 Iowa, 816, 221 N.W. 521; State v. Mewhinney, 43 Utah, 135, 134 P. 632. BURR, J.
It is claimed by the appellant that such evidence is of a higher character than a circumstance and that the jury should not have been told that such was not a defense to a crime actually committed. That such evidence is not a defense seems to be the holding in State v. Schumacher, 195 Iowa 276, 191 N.W. 870; State v. Hilman, 203 Iowa 1008, 213 N.W. 603; State v. Johnson, 211 Iowa 874, 234 N.W. 263. That there was no error in referring to the evidence of good character as a circumstance is also sustained, we think, by State v. Shultz, 177 Iowa 321, 158 N.W. 539; State v. King, 122 Iowa 1, 96 N.W. 712; State v. Bell, 206 Iowa 816, 221 N.W. 521. The court's instruction must be read and considered as a whole and in connection with all other instructions. When this is done, we think the jury was clearly told and sufficiently understood from the instructions that if, considering all the evidence, including the evidence as to good reputation, they had any reasonable doubt as to the defendant's guilt, it was their duty to acquit him.
In that case it was held improper to permit the witness to be asked whether he had heard of specific acts of misconduct wholly foreign to such particular trait. The case at bar is also distinguishable from State v. Bell, 206 Iowa 816, 221 N.W. 521. In that case the witness was asked whether he knew of instances in which the defendant had been in difficulties.
Under no rule of evidence could such a method of self-serving testimony be permitted. See State v. Bell, 206 Iowa 816. The transcript was not then in evidence. It was proper on cross-examination to interrogate the appellee as to specific questions asked and answers given on a former trial, and to show later that such questions were in fact propounded and such answers given. But the asking of these questions of the appellee on cross-examination did not open the door for counsel for appellee, on re-direct, to read copious excerpts from the transcripts of other evidence of appellee and have appellee state that he did so testify.