State v. Roberts

• Citation: 258 P. 32,144 Wash. 381
• Decision Date: 25 July 1927
• Docket Number: 20453.
• Parties: STATE v. ROBERTS.
• Court: Washington Supreme Court

258 P. 32

144 Wash. 381

STATE v. ROBERTS.

No. 20453.

Supreme Court of Washington

July 25, 1927

Department 2.

Appeal from Superior Court, King County; Charles P. Moriarty, Judge.

Arthur T. Roberts was convicted of burglary, and he appeals. Affirmed.

Henry Clay Agnew, of Seattle, for appellant.

Ewing D. Colvin and Harry A. Rhodes, both of Seattle, for the State.

ASKREN J.

The defendant was convicted of the crime of burglary, and upon sentence therefor appeals, urging a single assignment of error. This error is said to lurk in the following instruction given to the jury:

'Some evidence has been offered in this case of the flight of the defendants immediately or soon after the act alleged as the crime with which the defendants are here charged. If you find from all the evidence beyond a reasonable doubt that the act alleged as the crime with which the defendants are here charged was in fact committed by the defendants, and you further find that immediately or soon thereafter these defendants fled from the place where such act is alleged to have been committed, then the flight of the defendants is a circumstance to be considered by the jury together with the other evidence in the case. It is not sufficient in itself to establish the guilt of the defendants, but its weight as evidence is a matter for the jury to determine in connection with all the other facts in the case.'

Appellant claims that the use of the words, 'some evidence has been offered in this case of the flight of the defendants immediately or soon after the act alleged as the crime with which the defendants are here charged,' amounts to a comment on the evidence forbidden by article 4, § 16, of the state Constitution. In this connection is cited State v Belknap, 44 Wash. 605, 87 P. 934, where we held that, if the question of flight was a controverted one, it would be error for the court to give the following instruction:

'The jury are authorized to consider the flight of the defendant after a warrant was issued for his arrest, or after he learned that a prosecution was to be instituted against him, and it is for [the jury] to say just how much weight, if any, they shall give that fact as an evidence of guilt.'

It will be noticed, however, that the two instructions are dissimilar. In the latter the flight is assumed as a proven fact, while in the instruction complained of in the instant case the court told the jury specifically...