State v. Duncan

The opinion of the court was delivered by

Scott, J.

The defendant, Arthur Duncan, was convicted of the crime of larceny, and he appealed to this court, alleging as error the granting of a continuance of the cause from the 18th to the 21th of March without his personal presence. It is claimed that this is a violation of §22, art. 1 of the constitution, which provides that, “in criminal prosecutions, the accused shall have a right to appear and defend in person and by counsel.” We are of the opinion, however, that this provision has reference to matters connected with the trial, and not to anything preliminary thereto, and the granting of a continuance is not a part of the trial, but is a preliminary matter. Counsel for the prisoner was present at the time said order was granted, and objected, but not on the ground that the defendant was absent. It does not appear that the defendant was subjected to any injustice or injury in the premises.

Upon the trial of the cause the defendant took the stand and testified in his own behalf. Upon his cross examination, the prosecuting attorney was permitted to ask him questions relative to his having fled soon after the crime was committed for the purpose of evading the prosecution. It is contended that this was erroneous upon two grounds: (1) Because not proper cross examination; (2) because it was a violation of §9, art. 1 of the constitution of the state, which provides that “no person shall be compelled in any criminal case to give evidence against himself.”

As to the first ground, it is contended that it was im proper cross examination, because in the direct examination of the defendant he was only questioned touching his movements on the night prior to his arrest and on the morning of his arrest, while the questions relating to his flight from the state and absence from the trial of his brother, who was indicted with him, related to matters happening subsequent thereto. In his direct examination the defendant had been questioned generally with regard to his connection with the crime charged, and testified in relation to it. He was not asked the direct question as to whether or not he was guilty, nor did he in specific words deny his guilt, but the whole purpose of his testimony was to show that he was not guilty, and we are of the opinion that the questions complained of were proper as tending to affect the credibility of the witness, the fact of flight was some evidence of guilt, and, as such, tended to show that the defendant had testified untruthfully in endeavoring to show that he was not guilty. It had a direct bearing upon the truthfulness of his testimony in chief.

It is contended that the jury would not stop with considering the fact of flight as affecting the credibility of the defendant only, but would consider it as evidence of his being guilty of the crime charged. It is doubtful whether a dividing line can be drawn under the facts of this case, for the only way it could affect his credibility was in showing that he was guilty of the offense charged, and that consequently the testimony he had given in his direct examination to the effect that he w s not guilty was untrue. But, be this as it may, no erroi can be founded in the premises, for the instructions giv n by the court to the jury that the fact of flight might oe taken as evidence of guilt were given at the request of defendant. Bor instance, defendant requested the court to charge as follows:

“The jury may consider as one of the circumstances in this case the fact that defendant did not appear when his case was called for trial a few months after his arrest; but the fact that defendant fled is not conclusive proof of his guilt, and in the absence of other evidence is not sufficient. to authorize a verdict of guilty. In considering the circumstance of flight, the jury should consider the reasons why defendant fled, his temperament, his surroundings, the advice of his friends, the urgings of his family, and all that influenced him to flee.”

And the court gave this instruction with others relating thereto, requested by the defendant; consequently, if a distinction can be drawn between considering such evidence only as affecting the credibility of the defendant and not as evidence of his guilt of the crime charged, the defendant is not in a position to take advantage of it in this case. Nor was such cross examination a violation of the constitutional provision aforesaid. When a defendant in a criminal case takes the witness stand, he assumes the character of a witness, and as such is subject to be contradicted, disputed, or impeached, the same as any other witness. Sec. 1307, Code Proc.; Boyle v. State, 115 Ind. 469 (5 N. E. Rep. 203); Thomas v. State, 103 Ind. 419 (2 N. E. Rep. 808); State v. Pfefferle, 36 Kan. 90 (12 Pac. Rep. 406).

It is further contended that the court erred in charging the jury that the defendant might be convicted if, though not standing by at the time the taking was done, he advised and counseled it with the idea and with the intention of receiving the benefits of the property taken, on the ground that this was in effect telling the jury that the defendant might be found guilty under the information charging him as principal, if the evidence showed him to have been an accessory before the fact. Sec. 1189, CodeProc., provides that —

“No distinction shall exist between an accessory before the fact and a principal, or between principals in the first and second degree, and all persons concerned in the commission of an offense, whether they directly counsel the act constituting the offense, or counsel, aid and abet in its commission, though not present, shall hereafter be indicted, tried and punished as principals. ’ ’

Under a statute substantially like this the supreme court of California has held that the distinction between an accessory before the fact and a principal is abrogated, and that an accessory before the fact must be prosecuted, tried and punished as principal, and that it is sufficient to charge such accessory directly as principal. People v. Outeveras, 48 Cal. 19; People v. Rozelle, 78 Cal. 84 (20 Pac. Rep. 36).

It is contended that charging the defendant as principal does not sufficiently put him upon his guard and advise him of the facts to be proven against him, where it is sought to show that he was an accessory before the fact but not a direct participant in the crime itself, and that consequently an innocent man might be surprised in a trial by the proof offered, and not have sufficient opportunity to prepare therefor in consequence of his not having known in advance the facts to be shown against him. But we doubt if there is any more foundation for this contention than there would be where the effort was to show the defendant a principal in the commission of the crime charged. For instance, in the crime charged here, that of larceny of a steer belonging to one Neal Smythe, it was possible for the offense to have been committed in so many different ways and under such a variety of circumstances as principal, even, that in the case of an innocent man the formal charge itself might not afford any accurate information of the facts and circumstances to be shown; but in such a case, where a party is prosecuted as principal, it is not contended that there need be anything more than a formal charge. It is not necessary to set up the evidence to be offered, nor the particular facts to be established. For instance, as to the particular part of the county where the property was stolen, whether taken in the night or in the day time, how taken, or how converted to the use of the defendant, the kind of property other than as one steer, etc., as to all of which the evidence might widely vary in different cases and yet be legitimate evidence under an information couched in practically the same words charging the defendant as principal. And until it is made necessary by law, in the case of a prosecution for a crime, to set up the particular acts to be proven against a principal, it is not necessary to set the same forth in the case of an accessory before the fact.

The defendant requested the court to give the following instruction: “The jury are instructed that the bare possession of stolen property alone is not sufficient to sustain a verdict of guilty,"’ which the court gave, but added the following: “It is only a circumstance tending to show guilt. ’' It is contended that this is error, as being a violation of §16, art. 4 of the constitution, which provides that “judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” It is not claimed, however, that it is not a correct statement of the proposition, and it is a sufficient answer to say that as the defendant requested an instruction upon this point he cannot complain upon the ground stated, because the court gave a more complete statement than he had requested.

Judgment affirmed.

Dunbar, C. J., and Hoyt, J., concur.