State v. Poe

• Decision Date: 16 February 1904
• Citation: 98 N.W. 587,123 Iowa 118
• Parties: THE STATE OF IOWA v. CLAUDE J. POE, ROBERT DECKER AND HARRY MILLER, Appellants
• Court: Iowa Supreme Court

98 N.W. 587

123 Iowa 118

THE STATE OF IOWA v. CLAUDE J. POE, ROBERT DECKER AND HARRY MILLER, Appellants

Supreme Court of Iowa, Des Moines

February 16, 1904

Appeal from Union District Court.--HON. H. M. TOWNER, Judge.

DEFENDANTS were put on trial under an indictment charging them with robbery committed while being armed with dangerous weapons and, on conviction, each was sentenced to imprisonment in the penitentiary for ten years, and they jointly appeal.

Reversed.

Stivers & Slaymaker and J. S. Banker for appellants.

C. W Mullan, Attorney General for the State.

MCCLAIN J. DEEMER, C. J., LADD, J., (dissenting).

OPINION

MCCLAIN, J.

The indictment charged that defendants made an assault upon one Charles Billington and put him in bodily fear and danger of his life, and that said defendants, being then and there armed with a revolver and a knife, the same being dangerous weapons, feloniously and unlawfully did rob, steal, and carry away from the person of said Billington, against his will, certain property described. The court charged the jury that if it found the defendants, or either of them, was armed with a revolver and knife, or either of such weapons, with intent, if resisted, to kill or maim the said Charles Billington, or if the defendants, or either of them, being so armed, struck or wounded the said Charles Billington, then the defendants, or either of them, so found guilty, might be punished as specified in Code, section 4754, which provides that "if such offender at the time of such robbery is armed with a dangerous weapon with intent if resisted, to kill or main the person robbed, or if being so armed, he wound or strike the person robbed," he may be punished by a term of imprisonment in the penitentiary not exceeding twenty years nor less than ten years.

This instruction is objected to on the ground that the indictment does not charge the aggravated degree of the offense described in the section of the Code above referred to, and it is contended that it was error to submit to the jury the question whether defendants were armed with intent, etc., or did, being so armed, wound or strike the person robbed. But it is to be noticed that the statute does not describe different offenses in the nature of robbery. In Code, section 4753, the crime is fully described, without reference to the circumstances of being armed, etc., while the two following sections prescribe punishments, depending on the presence or absence of the aggravating circumstances under which the crime is shown to have been committed. Therefore it was not necessary in the indictment to charge the circumstances of aggravation, which affect only the measure of punishment that may be inflicted. This conclusion has been reached in Massachusetts, where the statutory provisions are very similar to those found in our Code. Commonwealth v. Mowry, 93 Mass. 20, 11 Allen 20; Commonwealth v. Cody, 165 Mass. 133 (42 N.E. 575).

Although this court may not have expressly passed on the question, yet in State v. Brewer, 53 Iowa 735, 6 N.W. 62, it approved an indictment similar to the one now before us, while in State v. Callahan, 96 Iowa 304, 65 N.W. 150, and in State v. Osborne, 96 Iowa 281, 65 N.W. 159, it treated an indictment charging the essential facts of robbery, and also an assault with intent to kill, as not describing more than one offense, and deemed the peculiarities of the assault as unnecessary and surplusage. We think it not required that an indictment which states the essential facts of the crime of robbery shall further state the circumstances of aggravation, in order to warrant the imposition of the penalty provided for in Code, section 4754.

In one paragraph of the charge, the jury was instructed as follows: "It is claimed by the state that the defendants Decker and Poe at once fled, and endeavored to escape arrest by such flight. If 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 be justified in considering such flight as evidence of guilt." The objection urged to this instruction is that the jury may have reasonably understood it as authorizing them to give undue weight to the fact of flight, and to convict on proof of that fact alone.

The fact that defendant fled from the vicinity where the crime was committed, having knowledge that he was likely to be arrested for the crime, or charged with its commission, or suspected of guilt in connection therewith, 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. To this proposition there is general assent among the authorities, and it is well settled that evidence of flight is admissible. 1 Bishop's New Criminal Procedure, section 1250; Abbott's Trial Brief, 458. The admissibility of such evidence depends upon the assumption--which is in accordance with usual human experience--that a guilty person will, and an innocent person will not, attempt to avoid an investigation of a charge of crime; and yet it is well recognized as a fact that guilty persons do not universally attempt to escape; for, recognizing the danger of such attempt, or relying on the inability of the prosecution to connect them with the crime charged, they may well think it to be to their advantage to defy suspicions or accusations; while, on the other hand, innocent persons, through mere timidity, or by reason of a fear that they may not be able to meet apparent evidence of guilt, may seek to elude arrest for the purpose of escaping or postponing investigation until the excitement has subsided, or facts establishing their innocence may have been developed. It is therefore usual and proper, not only to instruct the jury that they may consider evidence of flight with other circumstances tending to show defendant's guilt, but also to advise them as to the weight which should be given to such evidence. Commonwealth v. Berchine, 168 Pa. 603 (32 A. 109); Elmore v. State, 98 Ala. 12 (13 So. 427); Sewell v. State, 76 Ga. 836.

In State v. Thomas, 58 Kan. 805 (51 P. 228), the court approved an instruction that flight of defendant is "a circumstance to be considered, in connection with all the other evidence, to aid you in determining the question of his guilt or innocence." The weight of such circumstances is frequently greatly modified by the conditions shown to have existed as bearing upon the conduct of the defendant; and under some circumstances, such as that the defendant was of immature years or thought himself to be in danger of violence, such evidence is of very little probative force. Mathews v. State, 19 Neb. 330 (27 N.W. 234); Ryan v. People, 79 N.Y. 593.

In the case last cited the court says: "The evidence that the defendants made an effort to keep out of the way of the officer was very slight, if any, indication 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 deserves, depending upon the surrounding circumstances." And in Sheffield v. State, 43 Tex. 378, this language is used: "It was a maxim of the ancient common law that flight from justice was equivalent to guilt. This effect is not now given to flight in the modern law of evidence. Numerous examples are to be found in which some other motive can be assigned than that of guilt, and which form exceptions to the general rule, and require consideration by the jury in coming to a conclusion as to the real motive for flight." It is clear that the circumstance of flight alone will not justify conviction of the defendant, in the absence of other evidence tending to connect him with the commission of the crime, although the corpus delicti may have been sufficiently shown. Elmore v. State, 98 Ala. 12 (13 So. 427); Sylvester v. State, 71 Ala. 17.

Indeed, it has been held that the court should not say to the jury, in such cases, that flight is evidence of guilt, but, rather, that it is only evidence tending to prove guilt, and accordingly it is said that the court should not instruct the jury that if flight is proved it must be satisfactorily explained, consistently with the innocence of the defendant. Fox v. People, 95 Ill. 71.

The last sentence of the instruction above quoted is open to criticism, therefore, in that it might have been reasonably interpreted by the jury as authorizing them to convict the defendant of the crime charged, without other evidence of defendant's guilt than that he had, soon after the commission of the crime, and with knowledge that he was suspected thereof, fled from the vicinity where the crime was committed. The instruction does incorporate the thought that such circumstance might be explained, but it leaves the jury to infer that, if unexplained, it is sufficient evidence to warrant them in finding that defendant was guilty of the crime. Even if unexplained, such conduct is not, as already pointed out, inconsistent with innocence, but merely a circumstance from which, with other circumstances, the inference of guilt may be drawn. This sentence cannot, perhaps, be said to be in itself erroneous as stating a proposition of law; but as the instruction, as quoted, embodies all that was said to the jury on the subject, and in view of the equivocal nature of the evidence relating to the flight, as it will be hereafter...