36

without a requisition.35 The flight of the accused after the crime cannot be proved against another person who was not actually implicated in aiding or procuring the flight. Nor can the flight of a third person, whose connection with the crime does not appear, be proved to show that the third person committed it.37

An attempt by a prisoner in jail awaiting trial for two distinct crimes to escape is not relevant to show that he is guilty of either. It may be impossible to determine which charge he fled, or attempted to flee, to avoid.38 He may have fled because conscious that he was guilty of the one for which he is not on trial.

It may usually be shown by proving the declarations or conduct of the accused before the crime that he was preparing for leaving town. The evidence of preparations for departure from the scene of the subsequent crime must not be too remote in point of time. Preparations on the day of the crime or on the day before are competent, particularly when it is apparent from the other evidence that the accused had the commission of the crime in contemplation as where he has made threats that he will commit the crime.39

It cannot with correctness be said that the flight or the attempted flight of the accused before his arrest, taken alone, raises a legal presumption of guilt that an inference of guilt must be drawn therefrom, or that his flight, without regard to the mo

35 Johnson v. State, 120 Ga. 135, 47 S. E. 510.

36

People v. Stanley, 47 Cal. 113, 118, 17 Am. 401; State v. Ruby, 61 Iowa 86, 15 N. W. 848. But on the trial of the accessory evidence of the concealment and flight of a principal not yet convicted is admissible to establish the guilt of the principal. State v. Rand, 33 N. H. 216; Cummins v. People, 42 Mich. 142, 143, 3 N. W. 305; McIntyre v. State (Tex. 1895), 33 S. W. 347; People v. Cleveland, 107 Mich. 367, 65 N. W. 216. See contra, Smith v. People, 38 Colo. 509, 88 Pac. 453.

37 Owensby v. State, 82 Ala. 63, 2 So. 764.

40

In Ryan v. People, 79 N. Y. 593, 19 Hun (N. Y.) 188, the court said: "The evidence that the defendant made an effort to keep out of the way of the sheriff was very slight, if any evidence of guilt. There are so many reasons for such conduct, consistent with innocence, that it scarcely comes up to the standard of evidence tending to establish guilt. but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it

tive which prompted it, is, in law, proof of guilt. At the most it is only one of a series of circumstances to be considered by the jury with the reasons that prompted it, tending to show guilt or by which an inference of guilt may be raised,11 and it has no probative force unless it satisfactorily appears that the accused fled to avoid arrest or imprisonment for the crime charged. Even then, its force is slight, depending on the efforts made, the means employed, and the motives and knowledge by which the act was accompanied. The departure of the accused may have been prompted by motives consistent with innocence. He may have feared arrest for a crime totally distinct from that for which he is indicted, or he may have apprehended violence at the hands. of the police. An officer who goes on the witness stand to prove that the accused has left the state may state how long he has been looking for the accused, may relate the steps he has taken to ascertain his whereabouts and may testify to the answers to the inquiries made by him. But all this evidence is only competent where the officer is seeking to arrest him for the crime for which the accused is actually being tried. If the pursuit of the officer has for its object an arrest for another crime any evidence of the officers as to the length or character of the pursuit or as to its incidents and circumstances is inadmissible.42 It is unnecessary in proving incidents connected with the flight of the accused, to produce the witness who actually met him away from home. It

deserves, depending upon the surrounding circumstances." To the same effect, see, Alberty v. United States, 162 U. S. 499, 40 L. ed. 1051, 16 Sup. Ct. 864; United States v. Greene, 146 Fed. 803.

"Hickory v. United States, 160 U. S. 408, 40 L. ed. 474, 16 Sup. Ct. 327; State v. Rodman, 62 Iowa 456, 17 N. W. 663; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330; Starr v. United States, 164 U. S. 627, 41 L. ed. 577, 17 Sup. Ct. 223; People v. Giancoli, 74 Cal. 642, 644, 16 Pac. 510; Sylvester v. State, 71 Ala. 17, 26, 72 Ala. 201, 206; Fox v. People, 95 Ill. 71, 76; State v. Stentz, 33

Wash. 444, 74 Pac. 588; Smith v. State, 106 Ga. 673, 32 S. E. 851, 71 Am. St. 286; Sweatt v. State (Ala. 1908), 47 So. 194. Flight, if shown, is not conclusive, nor does it raise a legal presumption of guilt, but is to be given the weight to which the jury think it entitled, under the circumstances shown. In this connection they may take into consideration the defendant's age, intelligence and financial ability to make a defense. United States v. Greene, 146 Fed. 803.

42 People v. Vidal, 121 Cal. 221, 53 Pac. 558; Bennett v. State, 47 Tex. Cr. App. 52, 81 S. W. 30.

is permissible for one who has made a search for the accused to testify that he inquired in various places and was told by persons there that the accused was not there or that he was there and was traveling under an assumed name. Indeed, the one who has done the searching may testify to what anybody told him of the whereabouts of the accused over the objection that such evidence is hearsay.43

§ 119. Explanation by accused of his flight or attempted escape.The escape or attempt of the accused to escape from actual incarceration is never conclusive evidence of guilt. It depends upon his motive. His actions may have arisen from a consciousness of guilt, the fear of trial and the dread of punishment. But it is equally probable that they may have been prompted by the fear that, though innocent, his property will make it impossible for him to defend himself,** or, being unable to give bail, and suffering from illness, he may seek liberty in order to avoid the discomforts and privations of imprisonment.“

45

46

The evidence of flight or escape should go to the jury, who are the sole judges of its weight and sufficiency, and of the motives which prompted the flight." It need not be shown that the accused actually anticipated an immediate arrest at the moment of his escape. But the mere fact that the accused left the county is not relevant if it is not shown prima facie that he did so to avoid arrest, and the motives of his departure may be inferred

43

48

49

13 People v. Colmey, 188 N. Y. 573, 25, 19 So. 403; Miller v. State, 110 80 N. E. 1115.

44

"United States v. Greene, 146 Fed. 803.

45 State v. Mallon, 75 Mo. 355. The character of the offense ought to be considered in determining the motives that prompted the flight. An innocent man accused of a capital crime may flee or attempt to break jail, while, if the charge involved a misdemeanor only, he may be willing, though innocent, to stand trial and be punished if convicted.

Ala. 69, 20 So. 392; White v. State, III Ala. 92, 21 So. 330; Ryan v. People, 79 N. Y. 593, 19 Hun (N. Y.) 188; Fox v. People, 95 Ill. 71, 77; State v. Baird, 13 Idaho 29, 88 Pac. 233; Evans v. State (Tex. Cr. App. 1903), 76 S. W. 467; State v. Adams (Del.), 65 Atl. 510; United States v. Greene, 146 Fed. 803.

48 State v. Frederic, 69 Me. 400, 403. 49 State v. King, 78 Mo. 555; State

46 Carden v. State, 84 Ala. 417, 4 v. Marshall, 115 Mo. 383, 22 S. W. So. 823; Thomas v. State, 109 Ala. 452, 453.

from the circumstances of his flight.50 The means used to escape may be shown circumstantially,51 and, where the absence of the accused is shown, inquiries made for him at his abode or usual places of resort at home or abroad, by police officers or others, with the answers given, may be received as an exception to the hearsay rule."2

The accused is not required to explain his flight or concealment by evidence proving beyond a reasonable doubt that his motives were consistent with innocence. The fact of his flight is a circumstance whose meaning is for the jury alone to determine, and he may be permitted to show the rectitude of his motives in fleeing to enable them to determine its meaning.54 He should be allowed to prove that, before the date of the crime, he had intended or had arranged to leave the state;55 that his flight was caused by threats or by actual mob violence,57 if he fled so soon after the threats coming to his knowledge as to show they caused it;58 that great public excitement existed. in the neighborhood where he lived, creating apprehensions of vio

50

56

Welch v. State, 104 Ind. 347, 353, immediately after the crime it may 3 N. E. 850. be shown, to illustrate his motive in 61 State v. Fitzgerald, 63 Iowa 268, leaving that, prior to the crime, he 19 N. W. 202. had entered into a contract which would require him to remain. Welsh v. State, 97 Ala. 1, 12 So. 275.

People v. Ogle, 104 N. Y. 511, II N. E. 53, 4 N. Y. Cr. 349; Carden v. State, 84 Ala. 417, 4 So. 823; People v. Fine, 77 Cal. 147, 19 Pac. 269; State v. Shipley, 171 Mo. 544, 74 S. W. 612; State v. Lucey, 24 Mont. 295, 61 Pac. 994.

66 Lewallen v. State, 33 Tex. Cr. App. 412, 26 S. W. 832; State v. Barham, 82 Mo. 67; Golden v. State, 25 Ga. 527; State v. Desmond, 109 Iowa 72, 80 N. W. 214.

67 State v. Griffin, 87 Mo. 608; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330; Batten v. State, 80 Ind. 394; State v. Ma Foo, 110 Mo. 7, 19 S. W. 222, 33 Am. St. 414; Arnold v. State, 9 Tex. App. 435. Cf. Kennedy v. Commonwealth, 78 Ky. 447; Brown v. State, 88 Miss. 166, 40 So. 737.

58 State v. McDevitt, 69 Iowa 549, 29 N. W. 459.

lence on his part;59 and that he was advised or warned by relatives and friends to flee, because his life was menaced.

02

But evidence to show that the accused had an opportunity to escape, or to break jail, of which he did not avail himself; that he surrendered or offered to surrender himself to the authorities, or telegraphed to the sheriff to come and arrest him," or when arrested out of the jurisdiction voluntarily returned,** is inadmissible unless perhaps to rebut any inference of guilt which may have been created by evidence that the accused has fled."5 Such actions may have been prompted by the fear of recapture, or by his confidence that, though guilty, he would be acquitted because of the ability of his counsel, the insufficiency of the evidence against him, or through the employment of bribery, or perjury or political or social influence. Where it is proved by the prosecution that the accused ran away after he had committed

50 State v. Phillips, 24 Mo. 475; Brown v. State, 88 Miss. 166, 40 So. 737.

o State v. Moncla, 39 La. Ann. 868, 2 So. 814; Walters v. State, 17 Tex. App. 226, 50 Am. 128; Arnold v. State, 9 Tex. App. 435. See Simmons v. State (Ala. 1909), 48 So. 606. 61 State v. Wilkins, 66 Vt. 1, 28 Atl. 323; People v. Rathbun, 21 Wend. (N. Y.) 509, 518, 519; Feople v. Montgomery, 53 Cal. 576, 578; Johnson v. State, 94 Ala. 35, 10 So. 667; Delaney v. State, 148 Ala. 586, 42 So. 815; Gardiner v. People, 6 Park. Cr. (N. Y.) 155; People v. Curtiss, 118 App. Div. (N. Y.) 259, 103 N. Y. S. 395; Thomas v. State, 47 Fla. 99, 36 So. 161; Lingerfelt v. State, 125 Ga. 4, 53 S. E. 803; State v. Wilcox, 132 N. Car. 1120, 44 S. E. 625; Commonwealth v. Hersey, 2 Allen (Mass.) 173; State v. Bickle, 53 W. Va. 597, 45 S. E. 917; Harvey v. State, 35 Tex. Cr. App. 545, 34 S. W. 623; Jones v. State (Ga. 1909), 63 S. E. 1114: Jenkins v. State (Fla., 1909), 50 So. 582.

S. W. 452; People v. Cleveland, 107 Mich. 367, 65 N. W. 216; Cole v. State, 45 Tex. Cr. App. 225, 75 S. W. 527; Pate v. State, 150 Ala. 10, 43 So. 343; Walker v. State, 139 Ala. 56, 35 So. 1011; Walker v. State, 13 Tex. App. 618; Upton v. State, 48 Tex. Cr. App. 289, 88 S. W. 212; State v. Moncla, 39 La. Ann. 868, 2 So. 814; State v. Taylor, 134 Mo. 109, 35 S. W. 92; State v. Smith, 114 Mo. 406, 21 S. W. 827; Barnett v. State (Ala., 1909), 51 So. 299.

63 Walker v. State, 13 Tex. App. 618, 643.

State v. Taylor, 134 Mo. 109, 35 S. W. 92. Cf. State v. Good, 132 Mo. 114, 33 S. W. 790; United States v. Crow, 1 Bond (U. S.) 51, 25 Fed. Cas. 14895.

65 See Brown v. State, 150 Ala. 25. 43 So. 194. But see contra, Crawford v. United States, 30 App. D. C. 1.

66 Defendant cannot be permitted to prove that his conduct in jail since his arrest has been good. State v. Fontenot, 48 La. Ann. 305, 19 So. III; Hill v. State, 37 Tex. Cr. App. 02 State v. Marshall, 115 Mo. 383, 22 415, 35 S. W. 660.