People v. Gibson

BEASLY, J.,

pro

tem.

This is an appeal from a judgment of the superior court of Alameda County, by which the defendant was convicted of a felony. The chief point made in the appeal is that the court erred in instructing the jury upon the subject of flight.

The appellant contends that the sole direct testimony upon which the conviction is based is that of the prosecuting witness, Thelma Lee, who is alleged to have been his victim. This testimony is sufficient to sustain the verdict, if believed by the jury to be true. It is admitted to be a fact that the defendant left the town in which the crime is alleged to have been committed on the evening of the day on which it was alleged to have been committed, and remained away for some months. His flight was explained by himself and his mother as not being prompted by consciousness of guilt, but rather because of an unfortunate previous experience when he was falsely accused of grand larceny and, notwithstanding his

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innocence, lie was compelled to “lay in jail” for several weeks before being finally discharged.

Upon this record, and other facts not necessary to recite, the trial court gave certain instructions to the jury upon the subject of appellant’s flight, and it is now contended that these instructions were erroneously given. In support of this contention, the appellant invokes the authority of the case of People v.

Matthai,

135 Cal. 442, [67 Pac. 694], claiming that it was decided in that case that where a defendant, having fled after the commission of the crime, offers evidence explaining his flight, no instruction whatever upon the question of flight should be given to the jury. The language quoted by counsel in his brief simply characterized an instruction there given on this subject as an instruction upon the facts, and was intended to caution the court as to the necessity of being careful in stating evidence not to give an instruction upon the facts. The explanation of his flight, given by and on behalf of appellant at his trial, might have been true or false, and the question whether it was true or false was a question for the jury, and therefore the instruction upon the subject of flight was quite proper. Counsel also attacks this instruction as erroneous, upon the ground that it was an instruction upon the evidence. The instruction was abstract in form. “You are instructed,” said the court, “that the flight of a person immediately after the commission of a crime of which he knows he is accused, is a circumstance to be weighed by the jury as tending in some degree to prove a consciousness of guilt, and is entitled to more or less weight according to the circumstances of the particular case.” There was more in the instruction to the same effect, and some of the language was put in concrete form and referred to the immediate case before the court. But it seems to us that, taken as a whole, the instruction could not have been misunderstood by the jury as intimating any view that the trial judge may have had of the case.