211 F. 41 | 9th Cir. | 1914
(after stating the facts as above).
“The flight of the defendant with Goodwin from the place of the murder is also evidence of guilt and a fact for your consideration.”
It is said that this is virtually an instruction that as a matter of law the defendant was guilty of the offense charged if he fled from the scene of the crime, and was a palpable invasion of the province of the jury to find the effect of that fact in the light of all the evidence. We are not inclined to regard this language, standing alone, as open to the interpretation thus put upon it, or that it would be so understood by the average mind, but we are quite certain that it cannot be so construed when read, as it must be, with its context. The entire feature of the charge bearing upon the question was this;
“Tbe defense of Stewart is that be did not kill ICibbe, and did not participate in the commission of the crime by any act of his own, or by any agreement, plan, or understanding with Goodwin. The defendant admits that he participated in the robbery of the bodies of Hillpot and ICibbe. The statute provides that the killing of a human being committed in the perpetration of or attempt to perpetrate a robbery is murder. The fact of robbery^ is therefore a direct admission for your consideration. The flight of the "defendant with Goodwin from the place of the murder is also evidence of guilt and a fact for your consideration. The only answer the defendant makes to these admitted facts is that he was compelled by Goodwin to do as he did: Is this answer sufficient in the light of all the events and- surrounding circumstances? This is the question you are called upon to answer by your verdict.”
It is quite apparent, we think, that by this language the court did no more in effect than tell the jury that defendant’s flight, which he admitted, like the admission of robbery, was a fact tending to show guilt, which they could take into consideration in determining the ulti
“Hut in neither of these eases was it intimated that the flight of the accused was not a circumstance proper to be laid before the jury as having a tendency to prove his guilt. Several authorities were quoted in the Hickory Case (160 U. S. 417, 16 Sup. Ct. 327, 40 L. Ed. 474) as tending to establish this proposition. Indeed, the law is entirely well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt. Whart. on Homicide, § 710; People v. Pitcher, 15 Mich. 397. This was the substance of the above instruction, and, although not accurate in all its parts, we do not think it could have misled the jury.”
In the case of Starr v. United States, 164 U. S. 627, 17 Sup. Ct. 223, 41 L. Ed. 577, relied on by. defendant, the jury were, in substantial effect, told that flight was in a sense a confession of guilt. This the court held was, within the principles of the Hickory and Alberty Cases, prejudicially erroneous. The present language is, we think, open to no such construction.
In- the first place, we are inclined to the opinion, as seems to have been held by the trial judge, that the recitals upon the face of the map sufficiently evidenced its character as a public document; it appearing therefrom that it was issued from the General Eand Office under the authority of the Secretary of the Interior. Holt v. United States, 218 U. S. 245, 252, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; 3 Wigmore on Evidence, § 1684, p. 2157.
“The words ‘for proving the indictment,’, and the connection in which they are used, clearly refer to the witnesses relied upon by the prosecution to establish the charge made by the indictment. They do not extend to such witnesses as may be rendered necessary for rebuttal purposes resulting from the testimony introduced by the accused in his defense. Indeed, that they ■?do not apply to rebuttal is obvious from the very nature of things, for if they did, as was well said by the trial judge, it would be impossible to conduct any trial.”
This reasoning applies aptly to the present case, since it would be equally “impossible to conduct any trial” under the construction of the statute contended for by defendant.
“Having shown these things, and the court having instructed you fully on the law, we will ask you to reach a verdict of guilty and to affix the death penalty on this young man, as has been done on his partner in crime.”
Defendant’s attorney immediately said, “We object to that last statementand the court promptly ordered it stricken out. Nothing further was said at the time by either counsel, and no instruction to the jury was asked with reference to the matter.
Moreover, the fact that Goodwin had previously been convicted was brought out on the examination of the defendant himself. In his direct examination; with reference to when he first met Kibbe and Hillpot, the defendant was asked by his counsel:
“Q. And who was present' at the time? A. Goodwin was present at the time. Q. That was John B. Goodwin? A. Yes, sir. Q. Is that the same Goodwin who was convicted for the killing of Alfred Hillpot? A. Yes, sir.”
Under such circumstances, we do not think the court would be justified in holding that the fact disclosed by the District Attorney, presumptively already known to the jury, although involving a grave impropriety, was such as to necessarily work prejudicial harm to the-defendant’s cause.
The examination of the somewhat voluminous record has been beset by much difficulty and labor on the part of the court in an-endeavor to locate the matter involved in the various exceptions, owing to the fact that the briefs have ho proper reference to the pages of the record where the exceptions are to be found; • the brief of the government being silent in that regard, and that of the defendant referring to the pages of the reporter’s transcript instead of the record as filed here. This latter omission, we assume, arises from the delay in completing the record, and we overlook it. We believe, however, that we have covered all the matters embraced in the case of which defendant has complained or could justly complain, and as a result we are unable to discover anything of a nature to justify us in disturbing the judgment of the court below or its order denying a new trial.
The judgment and order must therefore be affirmed; and it is so ordered.