An assignment of error which indicates the subject matter in the
charge to which the exceptions relate with sufficient clearness to
enable the court, from a mere inspection of the charge, to
ascertain the particular matter referred to, is sufficient.
Acts of concealment by an accused are competent to go to the
jury as tending to establish guilt, but they are not to be
considered as alone conclusive or as creating a legal presumption
of guilt, but only as circumstances to be considered and weighed in
connection with other proof with the same caution and
circumspection which their inconclusiveness, when standing alone,
requires.
The presumption of guilt arising from the flight of the accused
is a presumption of fact -- not of law -- and is merely a
circumstance tending to increase the probability of the defendant's
being the guilty person, which is to be weighed by the jury like
any other evidentiary circumstance.
A statement in a charge to the jury that no one who was
conscious of innocence would resort to concealment is substantially
an instruction that all men who do so are necessarily guilty, and
magnifies and distorts the power of the facts on the subject of the
concealment.
The court below charged the jury as to the probative weight
which should be attached to the flight of the accused, as
follows:
"And not only this, but the law recognizes another proposition
as true, and it is that 'the wicked flee when no man pursueth,but
the innocent are as bold as a lion.' That is a self-evident
proposition that has been recognized so often by mankind that we
can take it as an axiom and apply it to this case."
Held that this was 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
axiomatic truth, and as such that it was error.
On these points, the charge of the court was neither calm nor
impartial, but put every deduction which could be drawn against the
accused from the proof of concealment and flight, and omitted or
obscured the converse aspect, and in so doing, it deprived the jury
of the light requisite to the safe use of these facts for the
ascertainment of truth.
The plaintiff in error, being indicted for the murder of one
Wilson, became a witness on his own behalf on his trial. The court
charged the jury:
"Bearing in mind that he stands before you as an interested
witness,
Page 160 U. S. 409
while these circumstances are of a character that they cannot be
bribed, that cannot be dragged into perjury, they cannot be seduced
by bribery into perjury, but they stand as bloody naked facts
before you, speaking for Joseph Wilson and justice, in opposition
to and confronting this defendant, who stands before you as an
interested party; the party who has in this case the largest
interest a man can have in any case upon earth."
Held that such a charge crosses the line which
separates the impartial exercise of the judicial function from the
region of partisanship where reason is disturbed, passions excited,
and prejudices are necessarily called into play.
The case is stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
Sam Downing, alias Sam Hickory, and Thomas Shade were indicted,
in October, 1891, for the murder in the Indian Territory of a white
man by the name of Joseph Wilson. Downing, who was at the time of
the alleged killing nineteen years old, was tried and convicted,
and the case was brought by error here. The verdict and judgment
were reversed, and the case was remanded for a new trial.
Hickory v. United States, 151 U.
S. 303. On the trial, the defendant was again found
guilty of murder, and the case for the second time comes here by
error. The assignments of error are twelve in number, and all
relate to errors alleged to have been committed by the trial court
in the charge given to the jury. The charge covers twenty pages of
the printed record. To correctly understand the merits of the
various assignments of error, it is necessary to briefly refer to
the testimony, which is stated in a condensed form in the bill of
exceptions.
The testimony for the prosecution tended to show that Wilson,
the deceased, was a deputy marshal, and had a warrant for the
arrest of the accused upon the charge of taking whisky into the
Indian country. With this warrant, he started to a house where he
expected to find Hickory, being
Page 160 U. S. 410
accompanied by John Carey. Wilson and Carey proceeded together
until just before reaching this house. Carey then informed Wilson
that he would go no further with him, as he did not wish to be
known in the neighborhood in connection with the arrest. It was
then arranged between them that Carey should remain in the woods,
while Wilson should continue on to the house and make the arrest.
Wilson had with him "a large white-handle pistol," and told Carey
that if he found the accuse, he would fire off his pistol after
arresting him, in which case Carey would meet him, "close to
Brown's, on the prairie." Wilson then proceeded on his way, and
Carey remained in the woods awaiting the signal agreed upon. In
about half an hour, Carey heard the firing of "a gun," then "two
guns" went off together, then there were several shots, "which
sounded as if they were fired by one man, and as if he was taking
his time to fire." Carey waited for Wilson until sundown, and as he
did not then come, he (Carey) went to the house of Squirrel Carey,
and "told him about hearing the shooting, and that Wilson was to
fire his pistol, but he did not say how many times." The government
also introduced proof showing that, some days afterwards, the body
of Wilson was found in a gulch or ravine, and there was a gunshot
wound straight through the body; that the skull was fractured, and
that there was a contused wound or bruise at the base of the brain.
The person of the deceased had not been rifled, and on it were
found his watch and papers; among the latter the warrant for the
arrest of Hickory.
Further testimony was introduced tending to show that an
examination of the house where Wilson had gone to arrest the
accused disclosed spots of blood on the porch, in the house, on the
door, and in the yard at several places, and on a wagon standing in
the yard, and that efforts had been made to conceal these spots of
blood. There was also testimony showing bullet marks in the house;
that "certainly one, and probably two, shots were fired from a
southeasterly direction, where the marshal likely was at the
commencement of the shooting, towards the front door, one striking
a corner
Page 160 U. S. 411
post and the other the wall near the door. Two shots had been
fired from the inside of the house through the front door, as shown
by the holes. One shot had been fired from the large front room,
glancing the middle-door shutter, which was open, and going into
the wall of the rear room, and another had gone into the wall of
said rear room opposite the center of the middle door."
Testimony was further offered tending to show that Wilson's
horse was found dead some distance from the house, and the
witnesses could not tell whether "its throat had been cut or eaten
by wild animals, as they had been working on it." It was also shown
that when Wilson went to the house, he had a pistol, a bridle, and
a saddle, on which a coat was strapped, and these things were not
found. The government then further introduced testimony tending to
show that the accused had told three or more witnesses
"that he shot the deceased, and hit him the first shot, but did
not kill him, and that Tom Shade, who was there with defendant,
knocked the deceased in the head with an axe; that after the
killing, an attempt had been made to destroy the blood spots in the
house and yard."
It further introduced testimony tending to show that after the
killing, the accused was "scouting -- that is, avoiding arrest."
Upon this proof the case for the prosecution was rested. The
accused, after introducing testimony tending to rebut the alleged
confession by showing that he was not in the place named at the
time it was stated the confession had been made, then testified in
his own behalf, admitting the killing of Wilson, and giving
substantially the following account of the occurrence: he was in
the yard, hitching up a team of horses for the purpose of hauling a
load of posts, when Wilson came into the yard and asked him his
name, which he gave him, and thereupon Wilson put him under arrest,
and read the warrant to him; that he replied, "All right," and
unharnessed the horses, and turned them loose; that Wilson asked
him whether he was going to ride one of the horses, and he replied,
"No; that they did not belong to him;" that thereupon Wilson asked
him who was the owner of the horses, and he said the owner was not
there,
Page 160 U. S. 412
but lived in the neighborhood. Wilson told him to take one of
the horses, and they would ride to the owner's house, and, if he
would not consent to Hickory riding away on it, it could be
returned. He again said, "All right," and put the bridle on the
horse, Wilson telling him to hurry up, and get his saddle; that he
started to go into the house after his saddle, and when he was
about three steps from the porch he heard the fire of a gun, and,
turning around, saw Wilson with a revolver in his hand, and smoke
coming from it; that he did not run after the first shot, but
walked on towards the house, when a second shot was fired just as
he was about to enter the front door; that he went into the house,
and shut the front door, intending to go out through a side-room
door and run off. When he had gotten about as far as the middle
door of the side room, he discovered Wilson coming in through the
outside door of the side room with his pistol raised at him
(indicating the pointing of a pistol); that he then ran to the east
side of the front room, got his gun, and went to the front door.
The marshal then appeared at the middle door of the side room,
exposing himself just enough to shoot, which he did, and that he
(the accused) returned the fire, which was followed by further
firing between them. The marshal then disappeared from the door,
and went into the yard, and fell down close by the wagon. He (the
accused) ran off, and remained a half an hour, and on coming back
found the marshal dead. He became frightened, and did not know what
to do, and, indeed, did not know all that he did do. He put the
body of the marshal on the wagon, and hauled it about a mile and a
half from the house, and then threw it out at the head of the
gulch. When he returned after doing this, he found the marshal's
horse wounded in the knee. He took off the saddle and bridle and
hid them, and also the coat which was tied to the saddle, and the
marshal's pistol and belt. The accused also introduced a witness to
the killing, a woman by the name of Ollie Williams, his mistress.
She testified to the marshal's coming up to the place where the
accused was standing in the yard with the wagon and horses; to the
accused's starting towards the house. She said that the marshal,
who was right
Page 160 U. S. 413
by a tree, then shot at him; that she did not see how the
marshal held his pistol the first time he shot; that the accused
was going into the door when the two shots were fired; that the
marshal came around to the outside room door with a pistol in his
hand, and told her to get out of the way; that she went a quarter
of a mile off, and had nothing to do with the moving of the body of
the deceased. The accused, moreover, introduced the testimony of a
physician who had examined the body of the deceased, and who
contradicted the statement that there was a fracture in the skull
of the deceased, and said there were two scalp wounds, one on the
top of the head and the other in the back. "They had the appearance
of some blunt substance striking the head, or the head striking the
substance."
The opinion formed by us as to three of the assignments of error
will render an examination of the others unnecessary. The three
which we will consider are as follows:
"4th. Because the court, in commenting on the inculpatory
testimony as to the acts of the defendant with reference to the
body of the deceased, the alleged killing of the horse, in
reference to what is charitable or brutal conduct, gives undue
prominence to the inculpatory facts, without summing up all the
testimony, as well for as against the defendant in reference to
this branch of the case."
"7th. Because the court a second time in the charge, in going
over the alleged conduct of the defendant subsequent to the killing
and his conduct in flight, gives undue prominence to the
inculpatory facts and gives them in a way that have the effect of
an argument against the defendant, and are not a proper, full
summing up of the facts upon this branch of the case."
"11th. Because the court bears upon and gives undue prominence
to the flight of defendant, and treats it absolutely as true that
defendant concealed the blood, killed the horse, and destroyed the
evidence of the alleged killing."
It is contended by the defendant in error that of these
assignments, the fourth and seventh are not sufficiently specific
to merit consideration, because they do not point out the exact
Page 160 U. S. 414
words in the charge of the court complained of. The assignments
are in exactly the same language as were the exceptions taken
during the trial, and which the record declares "the defendant
presented at the time." While it is true that the assignments do
not in terms state the precise language used by the court, they yet
indicate the subject matter in the charge to which the exceptions
relate with sufficient clearness to enable us from a mere
inspection of the charge to ascertain the particular matter
referred to. In considering, when this case was previously before
us, a similar objection to the adequacy of an exception, we
said:
"The rule in relation to exceptions to instructions is that the
matter excepted to shall be so brought to the attention of the
court, before the retirement of the jury, as to enable the judge to
correct error, if there be any, in his instructions to them, and
this is also requisite in order that the appellate tribunal may
pass upon the precise question raised without being compelled to
read the record to ascertain it."
It is here unquestionable, on the very face of the bill of
exceptions, that the objections were reserved before the retirement
of the jury and that the trial court was fully aware of their
import, and had the opportunity to make such corrections, if any,
as its judgment may have deemed necessary to prevent the charge
from being misunderstood by the jury. This is made clear not only
by the language of the bill of exceptions, but also by the charge
itself, which contains a statement by the court, entirely
inconsistent with a possibility of there having been any surprise
or misconception. The court said:
"There is a little bit of history on that, and I apprehend the
gentlemen won't take any exception to reading from this book [the
Bible]. There are a great many exceptions filed here to almost
everything said by the court, but I hope they won't take any
exception to this."
The first comments of the court upon the facts in reference to
concealment (covered by the fourth assignment), and its instruction
as to the weight to be given the proof on the subject of the flight
of the accused (covered by the eleventh assignment), are so
connected in the charge as to cause the examination
Page 160 U. S. 415
of the one to necessarily involve the other. We shall therefore
examine at the same time the errors complained of in these two
assignments.
First. Errors Complained of in the Fourth and Eleventh
Assignments.
The language of the charge to which these assignments relate
immediately follows the reference made by the court to the number
of exceptions reserved, and is in these words:
"And there is another fact that is so common that I have but to
remind you of it, because that which makes up your common knowledge
you can use in the investigation of these cases, and it is this:
there is no man who has arrived at the years of discretion who has
not been so created that he has that in his mind and heart which
makes him conscious of an act that is innocent upon his part, and
his conduct, when connected with an act of that character, will be
entirely different from the conduct of a man who is conscious of
wrong and guilt. In the one case, he has nothing to conceal; in the
one case, his interest and self-protection, his self-security,
prompts him to seek investigation, to see to it that it is
investigated as soon as possible. This is no new principle. I say
it is as old as the days of the first murder. There is a little bit
of history on that, and I apprehend the gentlemen won't take any
exceptions to reading from this book. There are a great many
exceptions filed here to almost everything said by the court, but I
hope they won't take any exceptions to this. There is a little bit
of history illustrative of the conduct of men:"
" And Cain talked with Abel, his brother, and it came to pass,
when they were in the field, that Cain rose up against Abel, his
brother, and slew him."
" And the Lord said unto Cain, where is Abel, they brother? And
he said, I know not. Am I my brother's keeper?"
" And He said, what hast thou done? The voice of thy brother's
blood crieth unto Me from the ground."
" Am I my brother's keeper?"
"From that day to the time when Professor Webster murdered his
associate and concealed his remains, this concealment of the
evidence of crime has been regarded by the law as a proper fact to
be taken into consideration
Page 160 U. S. 416
as evidence of guilt, as going to show guilt, as going to show
that he who does an act is consciously guilty, has conscious
knowledge that he is doing wrong, and he therefore undertakes to
cover up his crime."
"Now there may be exceptions to the general rule. General as it
is, it may have its exceptions; but the question for you to pass
upon is whether or not, in the first place, there were acts upon
the part of this defendant, either while acting alone or in concert
with others assisting him, that looked toward concealing this act
of the killing of Wilson; what these acts were; if they were cruel,
if they were unnatural, if they were barbarous, if they were brutal
-- you still have a right, and it is your duty, to take them into
consideration. If they were of that character, you are to bring to
bear your observation in life that men who are conscious of
innocence do not usually characterize their conduct after a killing
by that sort of acts. You are to see what the acts were. You are to
take into account the concealment of this body, the concealment of
this horse, the killing of the horse, and the concealing of
everything that pertained to that man, the effort to wipe out the
bloodstains left there where they might be evidences of killing,
where they might be discovered afterwards as evidences of the
killing. All these things are facts that you must take into
account, and not only that, but the law recognizes another
proposition as true, and it is that 'the wicked flee when no man
pursueth, but the innocent are as bold as a lion.' That is a
self-evident proposition that has been recognized so often by
mankind that we can take it as an axiom, and apply it in this case.
Therefore the law says that if, after a man kills another, he
undertakes to fly, if he becomes a fugitive from justice, either by
hiding in the jurisdiction, watching out to keep out of the way of
the officers, or of going into the Osage country, out of the
jurisdiction, that you have a right to take that fact into
consideration, because it is a fact that does not usually
characterize an innocent act."
It is undoubted that acts of concealment by an accused are
competent to go to the jury as tending to establish guilt, yet they
are not to be considered as alone conclusive, or as creating
Page 160 U. S. 417
a legal presumption of guilt. They are mere circumstances to be
considered and weighed in connection with other proof with that
caution and circumspection which their inconclusiveness when
standing alone requires. The rule on the subject has had nowhere a
clearer and more concise expression than that given by Chief
Justice Shaw in the
Webster case, to which the trial court
adverted.
Commonwealth v. Webster, 5 Cush. 295. The
learned Chief Justice said:
"To the same head may be referred all attempts on the part of
the accused to suppress evidence, to suggest false and deceptive
explanations, and to cast suspicion without just cause on other
persons, all or any of which tend somewhat to prove consciousness
of guilt, and, when proved, exert an influence against the accused.
The consideration is not to be pressed too urgently, because an
innocent man, when placed by circumstances in a condition of
suspicion and danger, may resort to deception in the hope of
avoiding the force of such proofs. Such was the case often
mentioned in the books, and cited here yesterday, of a man
convicted of the murder of his niece, who had suddenly disappeared,
under circumstances which created a strong suspicion that she was
murdered. He attempted to impose on the court by presenting another
girl as the niece. The deception was discovered, and naturally
operated against him, though the actual appearance of the niece
alive afterwards proved conclusively that he was not guilty of the
murder."
In Ryan v. People, 79 N.Y. 593, considering an
objection that the trial court erred in admitting evidence of an
attempt to escape from the sheriff, the court said:
"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 deserves, depending upon the surrounding circumstances. It was
not error to admit it."
People v. Stanley, 47 Cal. 113;
People v.
Forsythe, 65 Cal. 102;
State v. Gee, 85 Mo. 647;
State v. Brooks, 92 Mo. 542;
Swan v. People, 98
Ill. 610;
Anderson v. State,
Page 160 U. S. 418
104 Ind. 467, 472;
Jamison v. People, 145 Ill. 357.
The cases which illustrate the rule in various phases are too
numerous to review. They are collected in the textbooks, and will
be found in a note at the foot of chapter 14, § 750, of Wharton's
Criminal Evidence, 9th ed. The modern English law on the subject is
referred to in Wills on Circumstantial Evidence, p. 70, citing the
opinion of Mr. Baron Gourney in
Regina v. Belaney, which
is thus recapitulated:
"By the common law, flight was considered so strong a
presumption of guilt that, in cases of treason and felony, it
carried the forfeiture of the party's goods, whether he were found
guilty or acquitted, and the officer always, until the abolition of
the practice by statute, called upon the jury, after verdict of
acquittal, to state whether the party had fled on account of the
charge. These several acts in all their modifications are
indications of fear; but it would be harsh and unreasonable
invariably to interpret them as indications of guilty
consciousness, and greater weight has sometimes been attached to
them than they have fairly warranted. Doubtless the manly carriage
of integrity always commands the respect of mankind, and all
tribunals do homage to the great principle from which consistency
springs; but it does not follow, because the moral courage and
consistency which generally accompany the consciousness of
uprightness raise a presumption of innocence, that the converse is
always true. Men are differently constituted as respects both
animal and moral courage, and fear may spring from causes very
different from that of conscious guilt, and every man is therefore
entitled to a candid construction of his words and actions,
particularly if placed in circumstances of great and unexpected
difficulty."
And the same author, at p. 80, quotes the observation of Mr.
Justice Abbott on a trial for murder where evidence was given
proving flight:
"A person, however conscious of innocence, might not have
courage to stand a trial, but might, although innocent, think it
necessary to consult his safety by flight. It may be,"
added the learned judge,
"a conscious anticipation of punishment for guilt, as the guilty
will always anticipate the
Page 160 U. S. 419
consequences; but at the same time it may possibly be, according
to the frame of mind, merely an inclination to consult his safety
by flight, rather than stand his trial on a charge so heinous and
scandalous as this."
So, again at p. 88, the same writer says:
"So also is the concealment of death by the destruction or
attempted destruction of human remains [a presumption of guilt],
but in this case the presumption of criminality results from the
act of concealment, rather than from the nature of the means
employed, however revolting, which must be regarded only as
incidental to the fact of concealment, and not as aggravating the
character and tendency of the act itself. Where a prisoner tried
for murder admitted that he had cut off the head and legs from the
trunk of a female, and concealed the remains in several places, but
alleged that her death had taken place by accident while she was in
his company, and that in the alarm of the moment, and to prevent
suspicion, he had determined to conceal the death, Lord Chief
Justice Tindal told the jury that the concealment of death under
such circumstances had always been considered to be a point of the
greatest suspicion, but that this evidence must be received with a
certain degree of modification, and especially in a case where the
feelings might be excited by the singular means of concealment
adopted by the prisoner; that this point of evidence was therefore
for the consideration of the jury, and it was for them to show how
far it was proof of the prisoner's guilt; but the mere general fact
of concealment, added the learned judge, is to be considered, and
not the circumstances under which it took place."
The text writers generally state the principle in accordance
with the foregoing.
"Few things," says Best on Presumptions, p. 323,
"distinguish an enlightened system of judicature from a rude and
barbarous one more than the manner in which they deal with
evidence. The former weighs testimony, whilst the latter,
conscious, perhaps, of its inability to do so or careless of the
consequences of error, at times rejects whole portions
en
masse, and at others converts pieces of evidence into rules
of
Page 160 U. S. 420
law by investing with conclusive effect some whose probative
force has been found to be in general considerable. If any proof of
this were wanted, it would be amply supplied by our law with
reference to the species of evidence under consideration. Our
ancestors, observing that guilty persons usually fled from justice,
adopted the hasty conclusion that it was only the guilty who did
so, according to the maxim '
fatetur facinus qui fugit
judicium,' so that, under the old law, a man who fled to avoid
being tried for felony forfeited all his goods, even though he were
acquitted, and the jury were always charged to inquire not only
whether the prisoner were guilty of the offense, but also whether
he fled for it, and, if so, what goods and chattels he had."
This practice was not formally abolished until Stats. 7 & 8
Geo. IV. c. 28. sec. 5.
"In modern times, more correct views have prevailed, and the
evasion of or flight from justice seems now nearly reduced to its
true place in the administration of the criminal law -- namely,
that of a circumstance -- a fact which it is always of importance
to take into consideration, and, combined with others, may afford
strong evidence of guilt, but which, like any other piece of
presumptive evidence, it is equally absurd and dangerous to invest
with infallibility."
And this is quoted with approval in Burrill on Circumstantial
Evidence, p. 473.
See also Roscoe's Criminal Evidence, 8th
American Ed., p. 30. Mr. Wharton, in his Criminal Evidence, after
referring in a note to the American authorities, states the rule in
accordance with the foregoing, and concludes:
"The question, it cannot be too often repeated, is simply one of
inductive probable reasoning from certain established facts. All
the courts can do when such inference is invoked is to say that
escape, disguise, and similar acts afford, in connection with other
proof, the basis from which guilt may be inferred, but this should
be qualified by a general statement of the countervailing
conditions incidental to a comprehensive view of the question."
In a footnote at p. 645, this author collects several marked and
peculiar instances where a person had fled who was undoubtedly
innocent. One of these instances is this:
"Dr.
Page 160 U. S. 421
Thomas Fuller gives the following quaint excuse for running away
from London when charged with treason: And if any tax me, as Laban
taxed Jacob, 'Wherefore didst thou flee away secretly without
taking solemn leave?', I say with Jacob to Laban, 'Because I was
afraid.' And that plain-dealing patriarch, who could not be accused
for purloining a shoe latchet of other men's goods, confessed
himself guilty of that awful felony that he 'stole away' for his
own safety; seeing truth may sometimes seek corners not as fearing
her cause, but as suspecting her judge."
Thompson on Trials, Tit. 6, c. 69, § 2543, makes this
statement:
"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 was 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."
Measuring the correctness of the charge now considered by these
principles and authorities, it is at once demonstrated to have been
plainly erroneous. It magnified and distorted the proving power of
the facts on the subject of the concealment; it made the weight of
the evidence depend not so much on the concealment itself as on the
manner in which it was done. Considering the entire context of the
charge, it practically instructed that the facts were, under both
divine and human law, conclusive proof of guilt. The statement that
no one who was conscious of innocence would resort to concealment
was substantially an instruction that all men who did so were
necessarily guilty, thus ignoring the fundamental truth, evolved
from the experience of mankind, that the innocent do often conceal
through fear or other emotion. The legal influence which this
language must have exerted on the jury was increased by the
subsequent instruction that it was as old
Page 160 U. S. 422
as the first murder for the conduct of an innocent person to be
different from that of a guilty one. Putting this language, in
connection with the epithets applied to the acts of concealment and
the vituperation which the charge contains, it is justly to be
deduced that its effect was to instruct that the defendant was a
murderer, and therefore the only province of the jury was to return
a verdict of guilty. It is true that a subsequent portion of the
charge refers to the evidence on the subject of concealment as
"proper to be taken into consideration as evidence of guilt," as
going to show guilt. But these qualified remarks did not recall the
undue weight which the previous language had affixed to the facts
to be considered by the jury. The instruction as to the probative
weight which the jury should attach to the fact of flight was
equally erroneous. It was as follows:
"And not only this, but the law recognizes another proposition
as true, and it is that 'the wicked flee when no man pursueth, but
the innocent are as bold as a lion.' That is a self-evident
proposition that has been recognized so often by mankind that we
can take is as an axiom, and apply it to this case."
This instruction was 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. On this subject 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
Starr v. United
States, 153 U. S. 626,
in considering the power of a federal court to comment in charging
a jury on the evidence, we quoted with approval the language of the
Supreme Court of Pennsylvania,
Burke v. Maxwell, 81
Page 160 U. S. 423
Penn.St. 139, 153, saying:
"When there is sufficient evidence upon a given point to go to a
jury, it is the duty of the judge to submit it calmly and
impartially. And if the expression of an opinion upon such evidence
becomes a matter of duty under the circumstances of the particular
case, great care should be exercised that such expression should be
so given as not to mislead, and especially that it should not be
one-sided."
The charge given in this case violates every rule thus
announced. It was neither calm nor was it impartial. It put every
deduction which could be drawn against the accused from the proof
of concealment and flight, and omitted or obscured the converse
aspect. In so doing, it deprived the jury of the light requisite to
safely use these facts as means to the ascertainment of truth. Nor
can it be considered that the language subsequently used corrected
the error. "Now," says the charge, "there may be exceptions to the
general rule. General as it is, it may have its exceptions." But
none of the exceptions thus referred to were called to the
attention of the jury. Indeed, taking the language of the charge
which follows the foregoing words, it must have conveyed by the
strongest possible intimation the impression to the jury that the
case before them was controlled by the general rule previously
stated to them by the court, although other cases might be an
exception to such rule. For these reasons, the judgment must be
reversed. In this state of the case it would ordinarily be
unnecessary to consider the other assignments. As, however, the
case is before us for the second time, and must be remanded for a
new trial, the ends of justice will best be subserved by passing on
the remaining assignment -- that is to say, the eleventh
assignment. The portion of the charge to which this assignment is
addressed is as follows:
"And then again, there stands before you a witness who was
there; a positive witness, who saw this killing. That witness is
the defendant. Bear in mind, when you are passing upon this case,
that the other witness to it cannot appear before you. He cannot
speak to you, except as he speaks by his body as it was found,
having been denied even the right of decent burial, by the dead
body of his horse, by the concealed weapons
Page 160 U. S. 424
and the concealed saddle, by the blood stains that were
obliterated. He stands before you, although he is in his grave,
speaking by the aid of the power and the might of these
circumstances in this case. You are to see whether they harmonize
with this statement of this transaction as given by the defendant,
bearing in mind that he stands before you as an interested witness,
while these circumstances are of a character that they cannot be
bribed; that cannot be dragged into perjury; they cannot be seduced
by bribery into perjury, but they stand as bloody, naked facts
before you, speaking for Joseph Wilson and justice, in opposition
to and confronting this defendant, who stands before you as an
interested party -- the party who has in this case the largest
interest a man can have in any case upon earth. While you are not
to disbelieve his evidence because of that alone, if you are to do
justice -- if you are, in the language of counsel, not to be cruel
to the country, and to the people of the country, who are entitled
to legal protection -- you are to weigh these facts, and see
whether they harmonize with his statement when viewed by the light
of your intelligence, and, when this case is illuminated by such
facts, whether it is in harmony with the statements of this
interested witness or in contradiction of them."
It is apparent that this part of the charge is replete with the
errors which we have already found to exist in the matter which we
have already considered. But the instruction contains an additional
error of so grave a nature that we call attention to it in order to
prevent its recurrence. The manner of contrasting the testimony of
the accused with the circumstances connected with the concealment
was clearly illegal. The language in which this was done is:
"Bearing in mind that he stands before you as an interested
witness, while these circumstances are of a character that they
cannot be bribed; that cannot be dragged into perjury; they cannot
be seduced by bribery into perjury, but they stand as bloody, naked
facts before you, speaking for Joseph Wilson and justice, in
opposition to and confronting this defendant, who stands before you
as an interested party -- the party who has in this case the
largest interest a man can have in any case upon earth."
This
Page 160 U. S. 425
contrast thus made could have conveyed but one meaning to the
jury -- that is, a warning that the testimony of the accused was to
be considered by them as of little or no weight, because he could
be bribed, he could be dragged or seduced into perjury. Such
denunciation of the testimony of an accused is without legal
warrant.
Allison v. United States, 160 U.
S. 203. Indeed, this instruction, besides giving rise to
this error, was also, if possible, more markedly wrong from the
implications which it conveyed to the jury. It substantially said
to them,
"The circumstances as to the killing and concealment cannot be
bribed, but the defendant can be; therefore you must consider that
these circumstances outweigh his testimony, and it is hence your
duty to convict him."
In
Starr v. United States, ubi supra, speaking through
MR. CHIEF JUSTICE FULLER, this Court called attention to the fact
that there were limitations on the power of a federal court in
commenting on the facts of a case when instructing a jury --
limitations inherent in and implied from the very nature of the
judicial office. In
Reynolds v. United States,
98 U. S. 168,
speaking through Mr. Chief Justice Waite, this Court also said on
the same subject:
". . . Every appeal by the court to the passions or prejudices
of the jury should be promptly rebuked, and . . . it is the
imperative duty of the reviewing court to take care that wrong is
not done in this way. . . ."
Admonished by the duty resting on us in this regard, we feel
obliged to say that the charge which we have considered crosses the
line which separates the impartial exercise of the judicial
function from the region of partisanship where reason is disturbed,
passions excited, and prejudices are necessarily called into
play.
The judgment is reversed, and the case remanded, with
directions to grant a new trial.