Jenkins v. Commonwealth

• Decision Date: 16 March 1922
• Citation: 111 S.E. 101
• Parties: JENKINS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

111 S.E. 101

JENKINS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 16, 1922.

Error to Circuit Court, Rappahannock County.

Ray Jenkins was convicted under the maiming statute (Code 1919, § 4402), and he brings error. Reversed.

Grimsley & Miller, of Culpeper, for plaintiff in error.

John R. Saunders, Atty. Gen., J. D. Hank, Jr., Asst. Atty. Gen., and Leon M. Bazile, Second Asst. Atty. Gen., for the Commonwealth.

KELLY, P. Upon indictment under what is known as the maiming statute (Code, § 4402) the defendant, Ray Jenkins, was found guilty of feloniously shooting one Walter G. Miller, and sentenced to a term in the penitentiary. Thereupon the case was brought here by writ of error.

The shooting occurred on a dark night in the village of Washington, Rappahannock county. There were several persons in the immediate vicinity from which the shot was fired, and the evidence is in serious conflict as to the identity of the person who did the shooting. The defendant, after testifying that he did not even have a pistol on that occasion, stated that his brother did the shooting, and he was corroborated by the latter in that statement. After Miller was shot the defendant and his brother ran away to Madison county, where after a month or more they were arrested and brought thence to Rappahannock county, where the defendant was tried. He explains his flight by saying that he was afraid he would be arrested for shooting in town. This explanation does not seem very satisfactory in view of the fact that he denied having done any shooting, and yet, when it is recalled that he and his brother were together at the time, it does not seem unreasonable that he should have feared that they would both be involved in a charge of shooting on the street. At any rare, he was entitled to have the jury pass upon his explanation. The pertinency of this comment upon his flight and his explanation thereof will be apparent when we consider, as we shall proceed to do, the first assignment of error, which is based upon the allegation that the court erred in giving commonwealth's instruction No. 2 as follows:

"(2) The court instructs the jury that the flight of a person after the commission of a crime raises a presumption of guilt: and if they believe from the evidence that the prisoner, Ray Jenkins, did immediately after the shooting of Walter G. Miller, flee from the place where said Miller was shot to the county of Madison, Va., you may take this fact into consideration in determining his guilt or innocence, which question of flight you may consider, together with all the other facts and circumstances introduced in determining the guilt or innocence of the prisoner."

This instruction starts out with an erroneous proposition of law, namely, "that the flight of a person after the commission of a crime raises a presumption of guilt." So far as we have found, and so far as the Attorney General's office appears to have found, the only authority for this proposition appears in certain of the Missouri cases, wherein it is held that the flight from a charge of crime raises a presumption of guilt which may be rebutted and overcome by proof that the flight was occasioned by other causes than consciousness of guilt. See State v. King, 78 Mo. 555; State v. Brooks, 92 Mo. 542, 583, 5 S. W. 257, 330; State v. Lewkowitz, 205 Mo. 613, 178 S. W. 58.

The better doctrine, supported by the clear weight of authority, is that such flight as is described in the instruction under review does not measure up to the standard of presumptive evidence of guilt, but is merely evidence tending to show guilt, to be considered by the jury and given such weight as they deem proper in connection with other pertinent and material facts and circumstances in the case. 22 Am. & Eng. Enc. (2d. Ed.) 1265; 12 Cyc. 395; 9 R. C. L. p. 192, § 188; Hickory v. U. S., 160 U. S. 408, 16 Sup. Ct. 327, 40 L. Ed. 474; Alberty v. United States, 162 U. S. 499, 16 Sup. Ct. 864, 40 L. Ed. 1051; Wharton's Crim. Ev. §§ 750, 751.

Upon principle it would seem manifest that the only safe and just rule upon the subject is as last above announced, because the circumstances surrounding the flight of a person after the commission of a crime will vary greatly in individual cases. In this connection, the language of Mr. Justice Brown, in Alberty v. U. S., supra, is in point. He said:

"While there is no objection to that part of the charge which permits the jury to take into consideration the defendant's flight from the country as evidence bearing upon the question of his guilt, it is not "universally true that a man, who is conscious-that he has done a wrong, 'will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent. right and proper;' since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that 'the wicked flee when no man pursueth, but the righteous are as bold as a lion.' Innocent men sometimes hesitate to confront a jury—not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves. The criticism to be made upon this charge is, that it lays too much stress upon the fact of flight, and allows the jury to infer that this fact alone is sufficient to create a presumption of guilt."

The precise question before us in this case does not appear to have been passed upon inthis state, this court not having heretofore had occasion to decide whether the flight of a person accused of crime, or in a position...