State v. Lincoln, 164 N.W.2d 470

State v. Lincoln

164 N.W.2d 470

Neb.

1969

Check Treatment

STATE OF NEBRASKA, APPELLEE, V. EDWARD LEE LINCOLN, APPELLANT

No. 36976

Supreme Court of Nebraska

January 24, 1969

164 N. W. 2d 470

muсh greater incidence of stroke in men in their 50‘s and 60‘s. The query arises as to whether the holding of this court today allowing liability for a stroke under these circumstances would prevent employers from assuming the risk of employing otherwise сompetent men because of the tremendously enlarged liability for death and total disability arising from this type of “accident.” Nor do I believe that the trial or decision in a compensation case should be convertеd into “medical speculation as to judicial credulity or judicial speculation as to medical credibility.” The decision in the Workmen‘s Compensation Court was divided. I can come to no other conclusion but that this casе has failed on factual proof under the most liberal interpretation that can be permitted of the Workmеn‘s Compensation Act as amended in 1963.

A. Q. Wolf and Lynn R. Carey, Jr., for appellant.

Clarence A. H. Meyer, Attorney General, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and Bernard L. Packett, for apрellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCown, and NEWTON, JJ., and MORAN, District Judge.

MCCOWN, J.

Defendant, Edward Lee Lincoln, was found guilty by a jury on a charge of burglary. On appeal, the contention is that it was reversible error to instruct the jury on the issue of flight.

At about 3:15 a.m., on December 23, 1967, a window at the Borsheim Jewelry Store was broken and various items taken from the window display. The store is located at Sixteenth and Harney Streets in downtown Omaha. The display window was equipped with an ADT alarm system. Within a few seсonds, the break alarm was reported and broadcast to the police. Within 10 to 20 seconds after the break alarm signal was received, a service man for the ADT Company left the company offices some 3 blocks from the scene of the crime. He proceeded west in an automobile through an alley between Harnеy and Farnam Streets. As he reached Fifteenth Street, he saw a car coming around the corner 1 block from the scene of the crime. The headlights were off and it was traveling about 30 miles per hour. There was no other traffic on the street at the time. The car passed directly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in front of him heading north, and he saw there were two men in the car. It was a new 1968 bright red automobile. It had in-transit stickers on the front and rear windows and no license plates. Meanwhile, a police officer, at a time approximately 5 minutes before the burglary, had seen a red 1968 Chevy II with in-transit рlates parked in an alley, some 2 1/2 blocks from the Borsheim Jewelry Store, with its lights off. He backed the cruiser up and started down the alley, but the automobile pulled out at the other end of the alley. He stopped to cheсk doors in the alley and spent a minute or two. Shortly after he left the alley, he received the alarm. He was only a few blocks from the store when the alarm was received. He went immediately to the scene, checkеd momentarily with other police officers, and proceeded north and west. At a point approximatеly 5 blocks from the jewelry store, at Seventeenth and Capitol Streets, he saw the same automobile he had seen in the alley minutes before. He radioed for assistance in stopping the car, and followed it for a few blocks. When he turned on his red light and spotlight, the automobile pulled into a filling station and stopped. Property taken in the burglary was found in the car. The police officer arrested the defendant and his companion 4 minutes after the broken window activated the alarm.

It is apparently the defendant‘s position that because the automobile stopped almost immediately after the officer turned on his red light and spotlight, and there is no evidence аs to the speed of the chase, there is no evidence of flight.

The term “flight” is often misused for the word “departure.” Departure from the scene after a crime has been committed, of itself, does not warrant an inference of guilt. “Flight” may be established by a broad range of circumstances. We believe the proper rule to be that fоr departure to take on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid apprehension or prosecution based on that guilt. See,

29 Am. Jur. 2d, Evidence, § 228, p. 279; ; . See, also, II Wigmоre on Evidence (3d ed.), § 276, p. 111; 1 Wharton‘s Criminal Evidence (12th ed.), 1969 Cum. Supp., § 205, p. 95.

The specific instruction given here was: “You are instructed that the voluntary flight of a person immediately or soon after the occurrence of a crime, with whiсh the person so fleeing has been charged, is a circumstance, not sufficient of itself to establish guilt, but a circumstance nevertheless which the Jury may consider in connection with all the other evidence in the case to aid you in determining the question of the guilt or innocence of such person.” That instruction was proper. See

Davis v. State, 171 Neb. 333, 106 N. W. 2d 490. While the necessity or advisability of giving the instruction in this case may be debatable, the circumstances present here ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍wеre clearly sufficient to sustain an inference of flight as distinguished from mere departure from the scene of a сrime.

The judgment of the district court was correct and is affirmed.

AFFIRMED.

MORAN, District Judge, concurring in result.

I do not agree with the statement that the instruction was рroper. I submit that it is defective in that it assumes there was flight. This was for the jury to determine, not the judge. The judge should have definеd flight, left it to the jury to determine whether there was flight, and then given the instruction quoted. This is the substance of the instruction which was аpproved in

State v. Sullivan, 43 N. J. 209, 203 A. 2d 177.

The error did not result in a substantial miscarriage of justice, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and I am for affirmance of the judgment under the authority of section 29-2308, R. R. S. 1943.