State v. Morrison , 52 Idaho 99 ( 1932 )

I am impelled to dissent by reason of disagreement with the majority as to the disposal of the assignment relative to the instruction on flight. The instruction was as follows:

"You are instructed that the flight of a person immediately after he has been accused of the commission of a crime, or after a crime has been committed with which he is charged, is a circumstance not sufficient of itself to establish his guilt, but a circumstance which the jury may consider in determining the probabilities for or against him — the probability of his guilt or innocence. The weight to which this circumstance is entitled is a matter for the jury to determine in connection with all the facts and circumstances shown in the evidence.

"The flight of a defendant in a criminal case may or may not be considered as a circumstance tending to prove guilt, depending on the motive which prompted it — whether a consciousness of guilt and pending apprehension of being brought to justice caused the flight, or whether it was caused from some other and more innocent motive."

The position assumed by the state is best expressed by these quotations from its brief: "There was no question, we apprehend, in the mind of the court, jury, counsel for the state or defendant, or of the defendant himself, but that hedid flee or leave the scene of the crime. . . . . Therefore, there could be absolutely no question in the court assuming flight. . . . . Therefore, there was nothing to assume which was not proved and admitted fully. . . . . There is absolutely no question in this case but that the defendant fled."

Counsel for the state squarely contends that the court assumed and had the right to assume the fact of flight, because it was an admitted, undisputed fact. The majority opinion does not sustain this position, but disposes of the matter in these words: "The jury could not have been misled as to the effect that the Court was instructing them as a matter of fact that defendant had fled." It is with this conclusion that I disagree. Rather, do I incline to the view of the Attorney General that the court did assume the fact of flight, and that this decision must be based upon an answer to the question as to whether or not he had a right to do so.

The general rule is that it is reversible error for a court to assume the existence or nonexistence of any material fact in issue on which there is no evidence, or on which the evidence is controverted, or if undisputed, is such that different inferences might reasonably be drawn therefrom (16 C. J. 949, sec. 2328), and as stated by this authority, "In charging a jury the separate elements essential to constitute the crime should be stated clearly to the jury in such a manner as not to render it possible for the jury to think that any disputed fact is thereby assumed to be true."

This court has announced the same rule in State v. Hines,43 Idaho 713, 254 P. 217: "The court is not authorized to assume injurious facts against the accused in charging a jury."

I will concede that the court in charging a jury may assume the existence of uncontroverted or admitted facts, where under the evidence there is no ground for a difference of opinion as to the existence of the fact, or if reasonable men could draw but one conclusion therefrom. However, as stated in 38 Cyc. 1669, "The court can treat a fact as undisputed only when it is not only unopposed by direct evidence, but is not in conflict with proper inferences from other facts in evidence. Nor does it follow that because testimony as to certain facts is uncontradicted it must necessarily be believed, or that the court is authorized to assume the existence of such facts in instructing the jury."

The evidence in this case falls far short of that degree of indisputability which will authorize the assumption by the court of the important fact of flight. The only direct evidence of a leaving of the scene of the crime is that of the defendant himself and is as follows:

"The next I remember, Hamilton had hold of my shoulder shaking me and says, 'We have got to get out of here as Maples has been shot.' And I kind of rolled over and I was in a stupor and could not seem to get control of myself. Where Hamilton went after that, I do not know; but, I did not get off the bed. I never heard no shot fired or racket of no kind after I went out of my head. The next thing I remember, after Hamilton shaking me, I was on the hill above the house on the flat place, and when I came to, there was the horse tied up nicely to the tree and a thirty-five Remington hanging on the saddle horn, and some whisky left in the pint bottle on the other side of the horse. I sat there, and I thought it was really a bad dream when I come out of it. I could not get it in my head Maples was shot. I knew Hamilton told me that, but I did not know it was a fact; I did not know it had been done. I got up and untied the horse — my legs were queer — and I untied the horse and turned it loose and thought that it would go back to the ranch; and I thought I would walk and brace myself up with the fresh air; and I started down the mountain."

The record discloses that after this episode the defendant returned to the cabin where the killing occurred, and remained in the immediate vicinity of it until apprehended. The only statement which he made to the arresting officers relative to his action was, in his own language, "They asked me what I was doing and I said it was beyond me but I guess it looks like I was running away, but I guess that I came back." Witnesses for the state gave slightly different versions of this conversation, but the substance was the same.

Certainly the court was not justified in assuming that there was a flight, with all of the consequent implications of fact necessarily flowing therefrom, from this evidence. If the defendant did not knowingly leave the scene of the crime, and immediately upon regaining his senses returned to it, then there was no flight. Conceding that this might be a question for the jury, the evidence of flight cannot be said to be undisputed, as contended by the state, and the rule is offended by the court's assumption.

The instruction as a matter of law is open to the construction that it did assume flight.

"Error is also assigned on the charge of the court on the subject of flight. It is insisted that the facts did not warrant a charge on that subject, and that the charge was in itself an incorrect statement of the law. The facts, in our opinion, do not warrant a charge upon the subject of flight, without submitting to the jury for their determination the question whether in fact the evidence showed flight on the part of the accused. It appears that the accused, after the homicide and until his arrest, was no further from the scene than a few hundred yards, nor was he apparently making any effort to flee." (Fountain v. State, 149 Ga. 519, 101 S.E. 294.)

The qualifying second paragraph of the instruction, while probably a correct statement of the law, does not in anywise avoid the implication that the court assumed flight as a matter of fact, and in my opinion does not eliminate the objection urged against the instruction by appellant, nor does it overcome the rule as announced in State v. Collins,292 Mo. 102, 237 S.W. 516:

"This instruction is clearly erroneous, even if there had been substantial evidence on which to base the same, for it reads as follows: 'Flight of the defendant unexplained is a circumstance to be taken into consideration with all the other facts and circumstances in evidence, . . . ."

"It erroneously assumes, as a matter of law, that defendanthad been guilty of flight."

It is true that the instruction complained of leaves it to the jury to determine what motive prompted the flight. It does not advise the jury that it is their duty to determine whether or not there was flight. It meets the objection urged in Peoplev. Jones, 160 Cal. 358, 117 P. 176, 181, but it will be noted that in that case the court advised, "If you believe from the evidence in this case that the defendant did try to escape by flight . . . .," which is exactly the element lacking in this case.

A situation similar in principle is involved in prosecutions for larceny in which possession of stolen property is a fact sought to be proved. In the recent case of People v. Haack,86 Cal. App. 390, 260 P. 213, 916, the court of appeals of California passed upon the following instruction:

"The court instructs the jury that the recent possession of stolen property, unless satisfactorily explained, is a circumstance tending to show the guilt of the defendant, and must be taken with the other evidence in this case to determine his guilt or innocence," and in passing upon it the court said: "The instruction, taken alone, assumes the recent possession of stolen property on the part of the defendant. To make it a complete and accurate statement of the law it should have been predicated upon the jury believing from the evidence the fact of the recent possession of the stolen property by the defendant, and, then, that such possession, unless satisfactorily explained, was a circumstance tending to show the guilt of the defendant, and should be taken with other evidence in the case in determining the guilt or innocence of the defendant. The insufficiency of this instruction to properly advise the jury becomes apparent when we examine the instruction which we have called No. 2, given to the jury immediately after reading of instruction No. 1."

See, also, State v. Ireland, 192 Iowa, 489, 185 N.W. 35;State v. Moeton, 58 N.D. 191, 225 N.W. 318; People v. Barnes,311 Ill. 559, 143 N.E. 445.

I recognize the rule long established that this court will not interfere with the verdicts of juries based upon substantial, though conflicting evidence. However, a careful reading of the record has left an indelible impression of doubt upon my mind as to the guilt of the defendant. He was one of two persons who must have committed the homicide, and he was convicted almost entirely upon the evidence of the other party. There is no substantial proof of motive, and it is undisputed that the defendant became drunk upon liquor brought to him by the deceased and Hamilton, the other party. The showing made by appellant upon motion for new trial, while probably insufficient to justify us in disturbing the discretion of the trial court, further accentuates my doubt. As to the alleged flight, I cannot bring myself to believe that a drunken man in his stocking feet, who promptly returned to the scene of the crime and there remained until apprehended, ever fled within the proper meaning of that, term, with knowledge of guilt and to avoid arrest. Of course I cannot say where the guilt lies; only that I am in grave doubt, and in such case it seems to me that errors committed during the trial must be more closely scrutinized and be accorded greater significance than if the sustaining evidence is satisfactory and convincing. A case quite in point is People v. Goodwin, 202 Cal. 527,261 P. 1009, 1014, where an identical situation existed, one man having been convicted of murder upon the testimony of another, and an instruction upon flight having been given. The court said: "With a record as unconvincing against the defendant as the one in the instant case, any error in the matter of instructions or rulings upon evidence looms large." In a case as close as this, who can say that the instruction complained of did not have some or even decisive weight with the jury in its deliberations?

The judgment should be reversed and the case remanded for new trial.