Territory of New Mexico v. Lucero
16 N.M. 652
N.M.
1911
Check Treatment

OPINION OF THE COURT.

ROBERTS, A. J.

The appellant, Jose Refugio Lucero, was convicted in the District Court of Taos county, of murder in the sеcond degree and was sentenced to serve a term of not less than twenty-five nor more than thirty years in thе New Mexico Penitentiary. Appeal was prayed and granted to this court. Seven grounds of error havе been urged by the appellant, but as we are compelled to reverse the case, because of an erroneous instruction given the jury by the lower court, we shall discuss only' the questions essential to the consideration of the erroneous instruction. By instruction sixteen the court charged the jury as follows: “You are instructed that flight raises the presumption of guilt,, and if the jury believe and find from the evidence that after the shoоting of the deceased by the defendant, if you find that he did shoot him, that the defendant fled from the territory and tried to avoid arrest, then the juiv may take this fact, into consideration in determining his guilt or innocence; that is, if you believe that at the time he knew that he had shot and killed the deceased, if you find that he did so shoot and ‍​‌‌‌​​​‌​​​‌​​‌​​​‌‌‌‌‌​​​‌​​‌​​‌​‌‌‌‌​​​‌​​‌‌​​‍kill him.” The objection urged against this instruction is, that flight does not raise a presumption of guilt, and by the instruction the jury may have reаsonably understood that thejr could convict on proof of flight alone, on the part of the defendant. The fact that the defendant fled from the vicinity where the crime was committed, having knowledge that he was likely to he arrested for the crime, or charged with its commission, or suspected of guilt in connection therеwith, 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 the guilt of defendant, the corpus delicti being proven. There is general assent to this proposition among the authorities, and it is well settled that evidence of flight is admissible. 1 Bishop’s Kew Criminal Proc., sec. 1250; Abbott’s Trial Brief 458. Thеre is a broad distinction, however, between an “inference” and a “presumption,” and this distinction i§ cleаrly pointed out in the case of Cogdell v. Wilmington & W. R. Co., 132 N. C. 852, 44 S. E. 618; where the court says: “An inference is nothing more than a pеrmissible deduction from the evidence, while a presumption is compulsory and cannot be disregarded by thе jury.” The only-cases which we have been able to ‍​‌‌‌​​​‌​​​‌​​‌​​​‌‌‌‌‌​​​‌​​‌​​‌​‌‌‌‌​​​‌​​‌‌​​‍find approving instructions to the jury that flight raises the presumрtion of guilt are those in Missouri. Such an instruction is sanctioned by the following among many cases in that state: State v. Walker, (Mo.) 9 S. W. 646, State v. McFoo, 100 Mo. 7, 19 S. W. 222; State v. Hunt, 141 Mo. 626, 43 S. W. 389. The Supreme Court of Iowa, in the case of State v. Poe, 123 Iowa 118, 98 N. W. 587, in a well considered case in which all the authorities are reviewed, in speaking of the Missouri rule says: “The rule in Missouri seems to be peculiar and we are not inclined to follow it.” In the case of State v. Poe, supra, the lower court gave to the jury this instruction: “It is claimed by the state that defendants Deckеr and Poe at once fled, and endeavored to escape arrest by such flight. Tf 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 bе justified in considering such flight as evidence of guilt.” In speaking of this instruction the court says: “On principle 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 own state that we are precluded from following the dictates оf reason as illustrated by the weight of authority.” After reviewing the various decisions’ of the Iowa court the instruction was disapproved and the cause reversed. In Hickory v. United States, 160 U. S. 408, the subject is fully- considered' and an instruсtion is condemned ydiich is characterized as “tantamount to saying to the jury that flight created a legal рresumption of guilt so strong and so conclusive that it was the duty of the jury to act on it as an axiomatic truth,” and thе court continues as follows: “In this subject, also, it is true, the charge thus given was apparently afterwards qualifiеd by the statement that the jury had a right to take the fact of flight into consideration, bpt 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 сreating 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, the court approves what was said in the case from which we have just quoted and with reference to a similar qhargesays: “The criticism to be made on this charge is that it lays too much stress upon the fаct of flight, and allows the jury to infer that this fact alone is sufficient to create a presumption of guilt. ‍​‌‌‌​​​‌​​​‌​​‌​​​‌‌‌‌‌​​​‌​​‌​​‌​‌‌‌‌​​​‌​​‌‌​​‍It cеrtainly would not be contended as a universal rule, that the fact that a person who chances to be present on the scene of murder, shortly thereafter left the city, would, in the absence of other testimomg be sufficient in itself to justify his conviction of the murder.” See, also, Starr v. United States, 164 U. S. 627. It follows that the court erred in giving the instruction above referred to, and a new trial must be ordered. This-cause is therefore reversed.