State v. Nimmo ( 1976 )

UHLENHOPP, Justice

(dissenting).

Defendant objected that the questions called for opinions on “the ultimate issue for the jury to decide.” This is not a valid objection to a question. The court stated in Grismore v. Consolidated Products Co., 232 Iowa 328, 343-344, 5 N.W.2d 646, 655, “[T]he fact that the matter inquired about is a vital and controlling fact in the trial, or is even the ultimate fact, which the jury are to pass upon and determine, is no reason why the opinion should not be received.” (Italics added.)

The infirmity if any in the questions the prosecutor asked- here was that they involved mixed matters of law and fact. Hence they dealt with matters which are not subjects of opinion testimony. If defendant had objected that the questions called for answers which are not subjects of opinion testimony, he would have raised the issue he now argues. As also stated in Grismore, supra, at 361, 5 N.W.2d at 663, “No witness should be permitted to give his opinion directly that a person is guilty or innocent, or is criminally responsible or irresponsible, or that a person was negligent or not negligent, or that he had capacity to execute a will, or deed, or like instrument, or as held by us in Halligan v. Lone Tree Farmers Exchange, 230 Iowa 1277, 1283, 300 N.W. 551, respecting whether the county attorney had probable cause to believe the plaintiff was guilty of the crime charged. But the reason is that such matters are not subjects of opinion testimony. They are mixed questions of law and fact.” (Italics added.)

I would hold that the objections were insufficient. See State v. Sheridan, 247 N.W.2d 232 (Iowa).

LeGRAND, J., joins in this dissent.