123 Iowa 118 | Iowa | 1904
Lead Opinion
This instruction is objected to on the ground that the indictment does not charge the aggravated degree of the offense described in the section of the Code above referred to, and it is contended that it was error to submit to the j’ury the question whether defendants were armed with intent, etc., or did, being so armed, wound or strike the person robbed. But it is to be noticed that the statute does not describe different offenses in the nature of robbery. In Code, section 4753, the crime is fully described, without reference to the circumstances of being armed, etc., while the two following sections prescribe punishments, depending on the presence or absence of the aggravating circumstances under which the crime is shown to have been committed. Therefore it was not necessary in the indictment to charge the circumstances of aggravation, which affect only the measure of punishment that may be inflicted. This conclusion has been reached in Massachusetts, where the statutory provisions are very similar to those found in our Code. Commonwealth v. Mowry, 11 Allen, 20; Commonwealth v. Cody, 165 Mass. 133 (42 N. E. Rep. 575).
Although this court may not have expressly passed ou the question, yet in State v. Brewer, 53 Iowa, 735, it approved an indictment similar to the one now before us, while in State v. Callihan, 96 Iowa, 304, and in State v. Osborne, 96 Iowa, 281, it treated an indictment charging the essen
The fact that defendant fled from the vicinity where the crime was committed, having knowledge that he was likely to be arrested for tbe crime, or charged with its commission, or suspected of guilt in connection therewith, may be shown as a circumstance tending to indicate guilt, and may be considered by the jury with other circumstances tending to connect the defendant with the commission of the crime, to authorize the inference of tbe guilt of defendant, the corpus delicti being proven. To this proposition there is general assent among the authorities, aud it is well settled that evidence of flight is admissible. 1 Bishop’s New Criminal Procedure, section 1250; Abbott’s Trial Brief, 458. The admissibility of such evidence depends upon the assumption — which is in accordance with usual human experience — that a guilty person will, and an innocent person will not, attempt to avoid an investigation of a charge of crime; and yet it is well
In State v. Thomas, 58 Kan. Sup. 805 (51 Pac. Rep. 228), the court approved an instruction that flight of defendant is “a circumstance to be considered, in connection with all the other evidence, to aid you in determining the question of his guilt or innocence.” The weight of such circumstances is frequently greatly modified by the conditions shown to have existed as bearing upon the conduct of the defendant; and under some circumstances,, such as that the defendant was of immature years or thought himself to be In danger of violence, such evidence is of very little probative force. Mathews v. State, 19 Neb. 330 (27 N. W. Rep. 234); Ryan v. People, 79 N. Y. 593.
In the case last cited the court says: “The evidence that the defendants made an effort to keep out of the way of the officer was very slight, if any, indication of guilt. There are so many reasons for such conduct, consistent with innocence, that it scarcely comes up to tbe standard of evidence tending to establish guilt; but this and similar evidence has been al
Indeed, it has been held that the court should not say to the jury, in such cases, that flight is evidence of guilt, but, rather, that it is only evidence tending, to prove guilt, and accordingly it is said that the court should not instruct the jury that if flight is proved it must be satisfactorily explained, consistently with the innocence of the defendant. Fox v. People, 95 Ill. 71.
The last sentence of the instruction above quoted is open to criticism, therefore, in that it might have been reasonably interpreted by. the jury as authorizing them to convict the defendant of the crime charged, without other evidence ot defendant’s guilt than that he had, soon after the commission of the crime, and with knowledge that he was suspected thereof, fled from the vicinity where the crime was committed. The instruction does incorporate the thought that such circumstance might be explained, but it leaves the jury to infer that, if unexplained, it is sufficient evidence to warrant them in finding that defendant was guilty of the crime.' Even if unexplained, such conduct is not, as already pointed out, inconsistent with innocence, but merely a eircumstam*©
But we think that the second sentence of the instruction, declaring that flight, if to avoid arrest and prosecution, would be presumptive evidence of guilt, was erroneous and prejudicial. It is sometimes said, for the purpose of explaining why evidence of flight is admissible at all, and not for the purpose of determining what weight the jury should give to such evidence, that a presumption of guilt arises therefrom. Dr. Wharton, in an article on Presumptions in Criminal Cases (1 Criminal Law Magazine, 10), uses this language: “All evidence, therefore, we conclude, consists of reason and fact co-operating as co-ordinate factors. The facts áre presented to us either by inspection, or by what we call judicial notice, or by our knowledge of everyday life, such as is embraced by the term ‘notoriety,’ or by the descriptive narrative of witnesses. From these facts we draw certain conclusions. The mode by which we draw them is induction, and the processes we term ‘presumption.’ In other words, a presumption is an inference of a fact from a fact. Of this we may take the following illustration: A man ac cused of crime hides himself and then absconds. From this fact of absconding we infer the fact of guilt. This is a presumption of fact, or an argument pf a fact from a fact.” But in his work on Criminal Evidence (section 750), this author explains the whole matter in language so pertinent to all the phases of this case that we venture to quote him at length: “When a suspected person attempts to escape or evade a threatened prosecution, it may be argued that he does
In the same sense Best, in his work on Evidence, refers to the effect of such evidence (Chamberlaine’§ Ed. 1S93): “The evasion of justice seems now nearly, if not altogether, reduced to its true place in the administration of criminal law; namely, that of a circumstance, a fact which it is always of importance to take into consideration, and which, combined with others, may supply the most satisfactory proof of guilt, although, like any other piece of presumptive evidence, it is equally absurd and dangerous to invest with infallibility.”
Judge Thompson, in his work on Trials (volume II, section 2543), explains the matter thus; “It is often inaccurately said that the flight of the accused creates a presumption of his guilt, and this presumption is sometimes inadvertently dealt with as though it were a presumption of law. But it belongs to that class of presumptions which are generally classified as 'presumptions of fact.’ If it were a presumption of law, the jury would be bound to draw it in every case of flight, and the court might so instruct them; whereas it is merely a circumstance tending to increase the probability of the defendant being the guilty person, which, on sound principle, is to be weighed by the jury like any other evidentiary circumstance. In cases where the evidence renders, it
But in respect to all these" references to evidence of flight as raising a presumption of guilt, it is to be observed that it is one thing to say, in giving a legal reason for the admissibility of evidence of flight, that guilt may be presumed therefrom, and quite another thing to tell the jury that a presumption of guilt arises from such evidence. To prevent such an instruction being misleading, it would be necessary to go into
The error involved in directing the jury that evidence of flight gives rise to a presumption of guilt is clearly pointed out in the cases on the subject. In People v. Wong Ah Ngow, 54 Cal. 151 (35 Am. Rep. 69), such an instruction is condemned. In Hickory v. United States, 160 U. S. 408 (16 Sup. Ct. Rep. 327, 40 L. Ed. 474), the subject is fully considered, and an instruction is condemned which is characterized as “tantamount to saying to the jury that flight created a legal presumption of guilt so strong and so conclusive that it was the duty of the jury to act on it as an axiomatic truth,” and the court continues as follows: “In this charge, also, it is true, the charge thus given was apparently afterwards qualified by the statement that the jury had a right to take the fact of flight into consideration, but these words did not correct the illegal charge already given. Indeed, taking the instruction that flight created a legal presumption of guilt, with the qualifying words subsequently used, they were both equivalent to saying to the jury that they were, in considering the facts, to give them the weight which, as a matter of law, the court declared they were entitled to have; that is, as creating a legal presumption so well settled as to amount, virtually, to a conclusive proof of guilt.” In Alberty v. United States, 162 U. S. 499 (16 Sup. Ct. Rep. 864, 40 L. Ed. 1051), the court approves what was said in the case from which we have just quoted, and, with reference to a similar charge, says: “'The criticism, to be made on this charge is that it lays too much stress upon the fact of flight, and allows the jury to infer that this fact alone is sufficient to create a presumption of guilt. It certainly would not be contended, as a universal rule, that the fact that a person who chances to be present on the scene of a murder shortly thereafter left the city would, in the ab
The only cases which we have been able to find sanctioning instructions to the jury that flight is presumptive evidence of guilt are those in Missouri, as to Avliich Judge Thompson says (2 Thompson on Trials, section 2548, supra): “Often in Missouri, where the English idea concerning presumptions in criminal cases generally prevails, the following form of instruction upon this subject is used— ending, it is perceived, in submitting the fact as a circumstance to the consideration of the jury-^-'The court instructs the jury that flight raises the presumption of guilt, and if you believe from the CAddence that the defendant, after having shot and killed Minnick, as charged in the indictment, fled the country and tried to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence.’ ” Such an instruction is sanctioned by the following among many cases in that state: State v. Walker, 98 Mo., 95 (9 S. W. Rep. 646); State v. Ma Foo, 110 Mo., 7 (19 S. W. Rep. 222, 38 Am. St. Rep. 414); State v. Hunt, 141 Mo., 626-633 (43 S. W. Rep. 389). The rule in Missouri seems to be peculiar, and we are not inclined to follow it.
On principal and authority, the instruction as to the presumption to. be drawn from proof of flight is erroneous, and should not be sustained, unless it is so far sanctioned in the cases in our OAvn state that Ave are precluded from folloAving the dictates of reason as illustrated by the weight of authority. In State v. Rodman, 62 Iowa, 456, and State v. Fitzgerald, 63 Iowa, 268, we approved instructions to the effect that evidence of flight, or attempt to escape, should be considered as tending to establish guilt. In State v. Schaffer, 70 Iowa, 371, and State v. Stevens, 67 Iowa, 557, Ave held that evidence of flight Avas properly introduced, and that the the fact of flight Avas material. In State v. Seymour, 94 Iowa, 699, an instruction Avas approved Avhich told the jury
Although the term “presumptive evidence of guilt,” as applied to a certain state of facts, may, perhaps, sometimes indicate no more than that the facts referred to may be considered by the jury as evidence from which guilt may be inferred as a matter of fact, and not as a matter of law, yet it is always unwise, in giving the jury instructions as to tbe evidence, to say that from any particular fact a presumption of guilt arises. The question of guilt is one to be determined by the jury on all the facts. In State v. Brady, 121 Iowa,
The prejudicial and misleading character of the instruction given in this case is manifest when it is considered in connection with the evidence which we find in the record. So far. as appears, the only evidence of flight was that one of the defendants, who was still in the neighborhood where the crime was committed, two days after the commission of the crime, said that he was charged with having killed and robbed a man, and that “they were after him for it,” and he would get away if he could; that some time afterwards- — how long does not appear — he was in a town in an adjoining county, and that two months afterwards all the defendants were under arrest for this crime in Missouri. Defendants were roving characters, going from place to place and getting work of a temporary nature, and there was no reason disclosed why it should be expected that they would remain in the place where they were boarding, near the scene of the robbery, as they had no permanent employment at that place. Now, for the court to say that if it was proven that these
For error in giving the instruction above referred to, a new trial must be ordered. — -Reversed.
Dissenting Opinion
(dissenting). — The instruction which the majority condemn reads as follows: “If you find said defendants at once, after the alleged offense, fled to Missouri, and endeavored to avoid arrest and prosecution by such flight, such fact would be presumptive evidence of guilt, and, if such fact is unexplained, the jury would be justified in considering such flight as evidence of guilt.”
The use of the word “presumptive” is said to be fatal to the instruction. I do not think so. It is agreed that flight is evidence of guilt, but the majority say that it is not presumptive evidence. If it is not, I should hardly know what qualifying term to use in order to express the thought. What does this adjective mean? The Century Dictionary says: “Based on presumption or probability; probable; grounded on probable evidence; proving circumstantially, not directly.” Is flight, then, evidence based upon presumption or probability ? Does it tend circumstantially to prove guilt?. The authorities cited by the majority answer these questions in the affirmative, as I understand them. What is a presumption of fact in criminal jurisprudence? ' Wharton, in his work on Criminal Evidence, says, “It is a logical argument from a fact to
It is of course a disputable presumption, and one to be drawn generally by the jury. The question then is, does an inference of guilt arise from evidence of flight under the facts assumed in the instructions? I think the authorities are practically agreed on this proposition. It will be noticed that the court does not indicate in any manner how strong that inference is; the instruction leaves the whole matter to the jury, simply saying that evidence of flight, if unexplained, may be considered by them as evidence of guilt. After all, the whole matter is left to the jury. If a jury is not justified in considering unexplained flight, under the circumstances pointed out in the instruction as evidence of guilt, then such evidence is inadmissible for any purpose. This is all the instruction warrants it in doing; and, if it does not announce the law, then I have read the books to no purpose. There is nothing in the instruction which, even-inferentially, asserts that the jury might convict on evidence of flight alone. The court characterizes it as a certain kind of evidence, and then says that the jury may consider it as evidence of guilt, that is to say, as evidence tending to show guilt. Its characterization of the evidence as “presumptive” rather than “direct” has support in all the authorities. It is of -the same character as possession of property recently stolen; or identity of names in identifying persons; or the presumption that one intends the natural and probable consequences of his acts, or that he intended to do that which he. did; or the inference of guilt from the fabrication or falsi
Having characterized evidence of flight, that is, having given it a name, the trial court proceeded to say that such evidence, if unexplained, might be considered by the jury as evidence of guilt. Mark the words “such flight may be considered as evidence of guilt.” What fault is there in this? The authorities are united in holding that this is the correct rule. I am. not prepared to say that because the court characterized the evidence as “presumptive” it committed an error, especially where, as in this case, it says that the jury is simply justified in considering such flight as evidence of guilt.
I shall not undertake a review the authorities cited by the majority. Having read them all very carefully, I feel justified in saying that not one condemns such an instruction as was here given. The criticism I have of the opinion is that it does not distinguish between presumptions of guilt,
In State v. Seymour, 94 Iowa, 699, we approved an instruction to the effect that such evidence was “prima facie indicative of guilt.” In other words, it was presumptive evidence of guilt. In State v. Arthur, 23 Iowa, 430, wé said that such evidence is a circumstance against the defendant;
In State v. James, 45 Iowa, 412, we said that evidence •of unexplained flight is a circumstance prima facie indicative of guilt. .In other words, it is presumptive evidence of ■guilt.
In State v. Boyer, 79 Iowa, 330, evidence of flight,-with •other circumstances, was held sufficient to sustain a verdict of guilty.
The rule in Alabama is well stated in Murrell v. State, 46 Ala. 89 (7 Am. Rep. 592), wherein it is said: “Flight, In a criminal prosecution, is one of the most common grounds for a presumption of guilt. * * * Flight is universally admitted as evidence of the guilt of the accused, although it is not conclusive.”
The instruction has support in the following authorities, In addition to those already cited: State v. Hunt, 141 Mo., 633 (43 S. W. Rep. 389); State v. Ma Foo, 110 Mo., 7 (19 S. W. Rep. 222, 33 Am. St. Rep. 414); State v. Brooks, 92 Mo., 584 (5 S. W. Rep. 257, 330); State v. Walker, 98 Mo., 95 (9 S. W. Rep. 651).
I should not go so far as some of these cases, for they fyold that from flight a presumption of guilt arises, which must be explained by the defendant. Had the trial court
The jury could not have been misled by the use of the word “presumptive.” It was a qualifying term, and could not, as it seems to me, have been understood to relate in any manner to the burden of proof. Had it been., omitted, and the instruction been that flight would be evidence of guilt, I apprehend the majority would not have condemned it. The qualifying word “presumptive,” it seems to me, merely characterizes the nature and kind of evidence that it is, and the force and effect thereof is given in the next paragraph, which Says that, if unexplained, the jury would be justified in considering such flight as evidence of guilt. The majority so construe the words presumptive evidence as to make them mean “presumption of guilt.” They are not susceptible of this construction, and even if they were, in applying the evidence to the facts of the case, the jury were told that they were only to consider unexplained flight as evidence of guilt.
Some of the modern theorists, like Prof. Thayer,' have had a great deal of trouble with the words “presumption” and “presumptive,” and have displayed a great amount of learning over what is ordinarily a plain proposition. A jury does not indulge in any such refinements, and the question after all is, were the jury in this case so instructed that as reasonable men they were likely to understand that from un
