Edward Douglass White

“ If they were of that character, you are to bring to bear your observation in life that men who are conscious of innocence do not usually characterize their conduct after a killing by that sort of acts. You are to see what the acts were. You are to take into account the concealment of this body, the concealment of this horse, the killing of the horse, and the concealing of everything that pertained to that man, the effort to wipe out the blood stains left there where they might be evidences of killing, where they might be discovered afterwards as evidences of the killing. ”

“ Justice Abbott on a trial for murder where evidence was given proving flight: 'A person, however conscious of innocence, might not have courage to stand a trial, but might, although innocent, think it necessary to consult his safety by flight. It may be,' added the learned judge, 'a conscious anticipation of punishment for guilt, as the guilty will always anticipate the consequences ”

“ The consideration is not to be pressed too urgently, because an innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs. Such was the case often mentioned in the books, and cited here yesterday, of a man convicted of the murder of his niece, who had suddenly disappeared, under circumstances which created a strong suspicion that she was murdered. ”

“ It is true that a subsequent portion of the charge refers to the evidence on the subject of concealment as 'proper to be taken into consideration as evidence of guilt,' as going to show guilt. But these qualified remarks did not recall the undue weight which the previous language had affixed to the facts to be considered by the jury. The instruction as to the probative weight which the jury should attach to the fact of flight was equally erroneous. ”

“ On the trial, the defendant was again found guilty of murder, and the case for the second time comes here by error. The assignments of error are 12 in number, and all relate to errors alleged to have been committed by the trial court in the charge given to the jury. The charge covers 20 pages of the printed record. To correctly understand the merits of the various assignments of error, it is necessary to briefly refer to the testimony, which is stated in a condensed form in the bill of exceptions. ”

“ The accused, after introducing testimony tending to rebut the alleged confession by showing that he was not in the place named at the time it was stated the confession had been made, then testified in his own behalf, admitting the killing of Wilson, and giving substantially the following account of the occurrence: He was in the yard, hitching up a team of horses for the purpose of hauling a load of posts, when Wilson came into the yard, and asked him his name, which he gave him, and thereupon Wilson put him under arrest, and read the warant to him ”

“ The accused also introduced a witness to the killing, a woman by the name of Ollie Williams, his mistress. She testified to the marshal's coming up to the place where the accused was standing in the yard with the wagon and horses; to the accused starting towards the house. She said that the marshal, who was right by a tree, then shot at him; that she did not see how the marshal held his pistol the first time he shot; that the accused was going into the door when the two shots were fired ”

“ General as it is, it may have its exceptions; but the question for you to pass upon is whether or not, in the first place, there were acts upon the part of this defendant, either while acting alone or in concert with others assisting him, that looked toward concealing this act of the killing of Wilson ”

“ The language of the charge to which these assignments relate immediately follows the reference made by the court to the number of exceptions reserved, and is in these words:
'And there is another fact that is so common that I have but to remind you of it, because that which makes up your common knowledge you can use in the investigation of these cases, and it is this: There is no man who has arrived at the years of discretion who has not been so created that he has that in his mind and heart which makes him conscious of an act that is innocent upon his part ”

“ The cases which illustrate the rule in various phases are too numerous to review. They are collected in the text-books, and will be found in a note at the foot of chapter 14, § 750, Whart. Cr. Ev. (9th Ed.) ”