¶1(dissenting).
¶2The question is whether the trial court erred in denying defendant a new trial after holding a Jencks-type hearing upon remand. The facts are set forth in State v. Mayhew, 170 N.W.2d 608 (Iowa). On the original trial defendant was convicted of second degree murder for stabbing one McClellan to death.
¶3Officer Braatz’s written police report contained this statement regarding defendant: “Also checked and found that he had been drinking quite a bit.” On the original trial, the trial court did not require production of the report containing this statement.
¶4On direct examination in that trial, Braatz testified in substance that defendant walked and talked satisfactorily and did not argue. The officer was further asked on direct:
“Q. Could you smell any intoxicating beverage on him at that time? A. Yes, sir.
“Q. Was it a strong smell? A. Yes, sir.”
¶5The officer did not testify on direct that defendant was sober, nor was he asked.
¶6On cross-examination the officer testified defendant smelled as if he had been drinking, the drinking had a visible effect on defendant, in the officer’s opinion defendant was intoxicated, and it was not his testimony that defendant was sober.
¶7On redirect examination, the officer testified defendant was slightly intoxicated.
¶8When the case was remanded by this court, these directions were given (170 N.W.2d at 614):
“If the court finds the report contains one or more statements inconsistent with material testimony of Braatz on direct examination which is admissible for impeachment purposes a new trial is to be ordered.” (Italics added.)
¶9Two problems are presented: (1) Is the statement in the written report really inconsistent with the direct examination ? and (2) Was nonproduction of the report harmless at all events in view of the cross-examination and, if harmless, must a new trial be ordered anyway?
¶10I. Inconsistent with Direct Examination? Restricting consideration to Officer Braatz’s direct examination, the officer did say in substance that defendant could walk and talk satisfactorily, but the officer was not asked if defendant was sober and he did not testify that defendant was sober. On the contrary, when asked on direct if defendant smelled of intoxicants, the officer answered in the affirmative and further answered that the smell was strong. Hence the officer’s direct testimony is not really inconsistent with the statement in the report, “Also checked and found that he had been drinking quite a bit.” Under these circumstances, a trial court would be well within its discretion in holding that the written statement is not sufficiently inconsistent to be admissible. Dugger v. Kelly, 168 Iowa 129, 150 N.W. 27; French v. Universal C. I. T. Credit Corp., 254 Iowa 1044, 120 N.W.2d 476; 98 C.J.S. Witnesses § 573 at 534. On this basis alone, the case should not be reversed.
¶11If the case is affirmed on this basis, the previous directions on remand are complied with; those directions spoke of inconsistency of the written statement with Braatz’s testimony “on direct examination” and the statement is found not inconsistent with the direct examination. Thus the second problem, harmless error, would not be reached.
¶12II. Harmless Error? The second problem really involves two questions — wheth*727er nonproduction of the written report was harmless even if the statement in the report were inconsistent with the direction examination, and if nonproduction was harmless, whether a new trial must be ordered anyway.
¶13(a) Even if the statement in the report were inconsistent with the officer’s direct examination, manifestly the statement is not inconsistent with the officer’s testimony as a whole. Under defense counsel’s questioning, the officer testified on cross-examination that defendant smelled as if he had been drinking, the drinking had a visible effect on defendant, defendant was intoxicated, and it was not the officer’s testimony defendant was sober. On redirect examination the officer said defendant was slightly intoxicated. Thus the officer’s whole testimony goes further to prove intoxication than the statement in the report. Clearly defendant was not harmed by nonproduction of the report. Without the report defendant’s attorney got the officer to go further than the report. The claimed error is especially harmless in view of abundant other evidence in the case that defendant was intoxicated. (Even the committing magistrate’s testimony corroborated Officer Braatz’s statement that defendant appeared intoxicated. The intoxication testimony may account for the jury’s acquitting defendant of first degree murder for the stabbing.)
¶14The harmless error rule applies in Jencks situations. The Court stated in Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 1234, 3 L.Ed.2d 1304, 1307:
“Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness’ admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter.”
¶15In the same vein, see Killian v. United States, 368 U.S. 231, 243, 82 S.Ct. 302, 309, 7 L.Ed.2d 256, 265; United States v. Fruchtman, 421 F.2d 1019 (6th Cir.); United States v. Crisona, 416 F.2d 107 (2nd Cir.); United States v. Pope, 415 F.2d 685 (8th Cir.); United States v. Missler, 414 F.2d 1293 (4th Cir.); Lloyd v. United States, 412 F.2d 1084 (5th Cir.); United States v. Sten, 342 F.2d 491 (2nd Cir.); Lewis v. United States, 340 F.2d 678 (8th Cir.); Hayes v. United States, 329 F.2d 209 (8th Cir.); United States v. Kahaner, 317 F.2d 459 (3rd Cir.); United States v. Allegrucci, 299 F.2d 811 (3rd Cir.); Karp v. United States, 277 F.2d 843 (8th Cir.). See also L. Orfield, Criminal Procedure Under Federal Rules, § 26:338 at 649-50 (1966) (“In general there is no prejudicial error if the information withheld is otherwise in the possession of the defendant.”).
¶16The federal courts, which have had the most experience in the Jencks area, look to the witness’s testimony as a whole to see if the error was harmful or harmless. United States v. Missler, 414 F.2d 1293, 1304 (4th Cir.) (“The effectiveness of defense counsel’s cross-examination is highly relevant in determining whether there was prejudice by reason of the Government’s nondisclosure”) ; Karp v. United States, 277 F.2d 843 (8th Cir.) (court looked to report, testimony of government witness, and testimony of defendant); United States v. Meisch, 370 F.2d 768 (3rd Cir.) (looked to both direct- and cross-examination); Lewis v. United States, 340 F.2d 678 (8th Cir.) (same); Banks v. United States, 348 F.2d 231 (8th Cir.) (looked to testimony of witness — no restrictive language by court); United States v. Sten, 342 F.2d 491 (2nd Cir.) (same); Williams v. United States, 119 U.S.App.D.C. 177, 338 F.2d 286 (same).
¶17Thus the harmless error rule should be applied here in view of Braatz’s testimony as a whole, for, as stated in Rosenberg, “[I]t would deny reason to entertain the belief that defendant could have been prejudiced by not having had the opportunity to inspect … ”
¶18*728(b) If the written statement were inconsistent with the direct examination but the error is harmless in view of Officer Braatz’s whole testimony, must a new trial be granted anyway because of the directions on remand? The answer should be in the negative for two reasons.
¶19First, the harmless error rule cuts across procedural rules generally; it even cuts across constitutional protections. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The harmless error rule is an old one in this state. This court does not order retrials merely because error has been committed. It orders a second trial only for good reason — if the error in the first trial caused harm. State v. Thomas, 151 Iowa 572, 132 N.W. 51; State v. Nagel, 185 Iowa 1038, 170 N.W. 289, error dismissed, 254 U.S. 620, 41 S.Ct. 319, 65 L.Ed. 442; State v. Huston, 187 Iowa 1000, 174 N.W. 641. Implicit in the previous directions on remand of this case were the other standing rules of law, including the harmless error rule.
¶20Second, if the harmless error rule were held not implicit in the directions on remand, then this court should confess improvidence in those directions and now apply the standing harmless error rule. To do otherwise is to compound rather than to correct those directions. We should not order a retrial of a case when a defendant was not harmed by a trial court’s ruling. To do so is to engage in perfectionism rather than to ask the practical question of whether anyone was hurt by the ruling. To say that our hands are now tied by the directions on remand because, defendant went through a second hearing and took a second appeal is to apply a sporting theory of criminal justice. The true issue in criminal appeals is whether the defendant suffered harmful error on his trial. Here the defendant did not, and a retrial should not be ordered.
¶21MOORE, C. J., and REES, J., join in this dissent.