
    [No. 5207.
    Decided July 8, 1904.]
    The State of Washington, Respondent, v. Duke Deatherage, Appellant.
      
    
    Criminal Law — Bubglaby — Evidence — Competency. Where, in a prosecution for burglary, a witness testified that he saw the defendant enter a stable and take away two saddles, and that he notified the police by phone, it is not reversible error to sustain an objection, on cross-examination, to the question why witness did not notify the owners of the stable.
    Same — Plight. Upon a witness’ testifying that he saw defendant twenty-five miles from the place where the burglary was committed, and only eight hours thereafter, it is not error to permit the witness to answer the question, “Was defendant under arrest?” it not appearing that the witness was not qualified, and the primary purpose of the testimony being to show the fact of flight.
    Same. Where there is evidence that defendant committed a burglary at 2 o’clock A. M., and upon being discovered, disappeared, and admits that he walked twenty-five miles by 10 o’clock of the same morning, without giving any reason therefor, there was sufficient evidence of the flight of defendant to submit the fact to the jury.
    Criminal Law — Trial—Failure of Defendant to Testify— Instructions. An instruction that no inference of guilt shall arise against the accused because of his failure to testify in his own behalf is not objectionable because the court states that the statute makes it the duty of the judge to so instruct the jury.
    Criminal Law — Trial—Instructions as to Fact of Flight. An instruction that evidence of flight of the accused may be considered in determining his guilt, is not objectionable as a comment on the evidence.
    Same. Neither is such an instruction objectionable because it fails to explain that circumstances explaining the fact of flight may be considered, where there were no facts or circumstances to explain or excuse the flight.
    Burglary — Evidence—Sufficiency—Confession by Another — ■ Conflicting Evidence — New Trial. ■ A conviction of burglary will not be set aside as unwarranted by the evidence, because another states positively that he and not the defendant committed the crime, where, upon cross-examination, the witness was unable to state any of the surrounding circumstances, and admitted to having been convicted of a felony and to have occupied the same cell with defendant, and his evidence was squarely contradicted, since a new trial should not be awarded on conflicting evidence where there was evidence clearly sufficient to warrant the verdict.
    Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered January 2, 1904, upon a trial and conviction of the crime of burglary.
    Affirmed.
    
      Alex. M. Winston, for appellant.
    
      Horace Kimball, for respondent.
    
      
      Reported in 77 Pac. 504.
    
   Anders, J.

The defendant was convicted of burglary upon the trial of an information of which the following, omitting formal parts, is a copy:

“That the said defendant, Duke Deatherage, on the 4th day of [November, 1903, in the county of Spokane and state of Washington, then and there being, did then and there wilfully, unlawfully, feloniously and burglariously enter in the night time a certain stable there situate, the property of, and belonging to, C. O. Wilson and W. M. Moore, copartners doing business as the Klondike Stables, and then and there used by them as such, in which certain goods and valuable property of the said C. 0. Wilson and W. M. Moore, copartners as aforesaid, was then and there kept for use, with intent then and there unlawfully, wilfully, and feloniously, to steal, take and carry away the said goods and valuable property of the said C. O. Wilson and W. M. Moore, copartners as aforesaid, then and there kept for use as aforesaid.”

A motion for a new trial was denied, and the defendant has appealed from the judgment.

The errors assigned and relied on by the appellant for a reversal of the judgment call in question the ruling of the court in sustaining objections to certain questions propounded to witnesses, in refusing to strike from the records the testimony of the witness MePhee, in giving certain instructions to the jury, and in denying appellant’s motion for a new trial. At the trial the state called one Kisher, who testified, in substance, that he lived in Spokane and was employed in a stable adjoining the Klondike stables; that he was acquainted with the appellant; that on the night of Kovember 3, 1903, he was in the stable adjoining the Klondike stables on Kirst avenue; that about 1:30 or 2 o’clock on that night his attention was attracted by the barking of a dog in the Klondike stables; that he went to the rear of the stable and hid behind an open swinging door; that he saw the appellant coming out of the Klondike stable with a saddle under each arm (which saddles were produced in court and identified by the witness) ; that the appellant then walked up the alley and disappeared from sight; that in about five minutes fie returned and went into tfie stable where tfie witness was secreted, and in a few moments came out leading a horse belonging to the proprietor of tfie stable; that when appellant came out, fie, the witness, asked him, “What are you going to do with that horse ?” whereupon fie dropped tfie horse and ran away.

This witness further testified, that fie then telephoned tfie police station and reported the matter to tfie police, and two policemen came up to tfie bam; that fie and tfie policemen looked for the saddles, and that fie found them and the bridle, about one hundred and fifty feet from the bam, in a wagon which was in tfie alley. On cross-examination tfie witness stated that he did not enter the Klondike stables, after tfie saddles were taken, until the next day, and that fie reported tfie taking of tfie saddles that night to tfie police by “phone.” Counsel for tfie defendant then asked tfie witness tfie following questions: “Q. Did you report to Mr. Wilson or Mr. Moore tfie taking of tfie saddles, that night ? Ans. I did not. Q. Why did you not report to Wilson or Moore tfie taking of tfie saddles that night?” This question was objected to by counsel for tfie state on tfie ground that it was immaterial. Tfie objection was sustained by tfie court, and the defendant, by fiis counsel, excepted.

It is claimed that this ruling of tfie court was erroneous and prejudicial to the appellant, and it is insisted that tfie appellant fiad tfie right to know why tfie witness did not inform tfie proprietors of tfie Klondike stables that a burglary had been committed; and it is, in effect, argued in support of (fiis contention that, if the witness fiad no good reason for not promptly reporting tfie burglary to the proprietors of tfie stables, counsel for the appellant could have argued to tfie jury that, as a matter of fact, no burglary was committed, or, if that offense was committed, that the witness himself or some person other than the appellant committed it. Although this interrogatory, as propounded to the witness, may not be deemed to have been wholly irrelevant or immaterial, yet we are convinced that the 'sustaining of the objection thereto constitutes no sufficient ground for the reversal of the judgment. The witness had already testified that he reported the burglary to the police, but did not report to Wilson or Moore that night that the saddles had been taken from the stable; and it would seem that .the reason why he did not report to them was, at most, a circumstance only remotely, if at all, material to appellant’s defense. Whether the answer to the question would have been beneficial or not to the appellant is merely a matter of pure speculation. If any inference favorable to appellant could be drawh from the fact that the witness did not report the taking of the saddles to Wilson or Moore, the appellant was certainly entitled to the benefit of it, and his counsel could have so argued to the jury.

It is next insisted that the trial court erred in permitting the witness McPhee, over appellant’s objection, to answer the question, “Was defendant under arrest?” and in refusing to strike from the record the statement of the witness that the defendant was under arrest, when he saw him at Eeardon, Washington, at about 10 o’clock in the forenoon of November 4, 1903. These two assignments of error are based upon the proposition that an arrest may be proved in two ways only; first, by a person who made the arrest or who saw it made; and, second, by a certified copy of a public record showing the arrest. But conceding, without deciding, that this proposition is correct, still we find nothing in the record showing that the witness was not qualified to testify that, the appellant was under arrest at the time he saw him and conversed with him at Reardon. The fact that the appellant was not handcuffed does not show that he was not under arrest. On the contrary, as stated by counsel for the state, this shows, if it shows anything, that appellant was in no way resisting arrest. Ror does the fact that the sheriff was not in the store when McPhee was there throw any light, either one way or the other, on the subject of the arrest of appellant. McPhee was a police officer of the city of Spokane, and he testified that, while he was on the railroad going from Davenport to Spokane, he was informed that appellant was at Reardon, in custody, and that he found him there sitting in a Store at the time above mentioned. In fact, it appears that the question of appellant’s arrest was not deemed of any special importance by the prosecuting attorney, as there was no attempt to ascertain from the witness the details of the original arrest of appellant, if he was arrested by some person other than the witness himself. If the appellant, as seems to have been the fact, was in the actual custody, or within the power, of McPhee, he was, in contemplation of law, under arrest. Gold v. Bissell, 1 Wend. 210, 19 Am. Dec. 480. We think the court did not err either in overruling appellant’s objection to the question as to appellant’s arrest, or in denying the motion to strike the answer thereto from the record.

Ror do we think the court erred in refusing to strike from the record the entire testimony of the witness Mc-Phee. It is admitted that the primary purpose of the testimony of this witness was to show that appellant had precipitously fled from the scene of the crime with which lie was charged. But the learned counsel for the appellant earnestly insists that such testimony was wholly insufficient to prove flight, and therefore should have heen excluded from the consideration of the jury. It is true that the testimony in question was not alone sufficient to establish the fact that the appellant was fleeing from justice, but it was nevertheless competent and material evidence upon that question. It constituted at least one link in the chain of circumstances from which flight might be inferred, and was therefore properly submitted to the jury. That McPhee saw appellant at Beardon, a town twenty-five miles from Spokane, at 10 o’clock in the morning of November 4, 1903, and that appellant told him he had walked all the way from Spokane the night before, is not disputed. And the materiality of this testimony becomes at once apparent, when viewed in connection with the positive testimony of the witness Pisher to the effect that he s«w the appellant at or about 2 o’clock in the morning of the same day, carrying saddles from the Klondike stable, in the city of Spokane, and trying to steal a horse from the adjoining stable. Why the appellant walked on that particular night from Spokane to Beardon is not disclosed by the record, and, that being true, it cannot be said there was no evidence of flight on the part of appellant. It is not necessary, in order to prove the flight of one charged with crime, to show that he escaped from jail or from an officer having him in custody, for it often happens that persons conscious of guilt seek safety by flight, even before they are suspected of crime. “The wicked flee when no man pursueth.”

The fifth assignment of error is that the court erred in instructing the jury as follows:

“While the statute of this state provides that a person charged with crime may testify in his own behalf, he is under no obligation to do so, and the statute expressly makes it the duty of the court to instruct the jury that no inference of guilt shall arise against the accused if the accused shall fail or refuse in testify as a witness in his own behalf, and the court so instructs the jury in this case.”

It is conceded that this charge of the court complies with the letter of the statute, hut it is contended on behalf of appellant that it is not within the spirit of the law; and it is urged that the appellant was entitled to an unqualified instruction, without reference to any statute whatever; or, in other words, that the appellant was prejudiced by the statement to the jury that “the statute expressly makes it the duty of the court to instruct the jury that no inference of guilt shall arise against the accused if the accused shall fail or refuse to testify as a witness in his own behalf.” It is stated, in effect, by counsel for appellant, that the judge, by this instruction, virtually told the jury that “the law requires me to so instruct you, and for that reason only I do it.” This instruction is clearly in accordance with the law, and the statement of the court that it was made its duty, by the statute, to so instruct the jury, did not, in our judgment, abridge or injuriously affect any right of the appellant. Where the jury is properly directed as to the law upon a particular question, the language used by the court is a matter of no special importance. In State v. Mitchell, 32 Wash. 64, 72 Pac. 707, this court ruled that an instruction which substantially complies with the provisions of the statute is sufficient, and we think such is the general rule. The instruction now under consideration is not only substantially but literally in the language of the statute (Bal. C'ode, § 6941), and is therefore not subject to legitimate criticism.

Upon the question of flight the court charged the ] urjas follows:

“If you find that burglary was committed as charged in the information, evidence of flight of the accused may be considered in determining the question as to whether .he was the one who committed the act.”

It is contended by appellant that this instruction is erroneous for the reasons, (1) that there is no evidence of the flight of the appellant, and no evidence of any attempt to escape from the officers; (2) that it comments upon the facts in the case; and (3) that this is not a proper case for such an instruction, and that the instruction fails to state the law correctly. What we have said in discussing .appellant’s fourth assignment of error disposes of the proposition that there was no evidence of flight of appel-' lant, and therefore a further consideration of the question of flight is unnecessary. Uor do we think that this instruction is violative of section 16 of art. 4 of the constitution, which provides that judges shall not charge juries with respect to matters of fact, or comment thereon; The learned judge made no statement to the jury as to the evidence which had been introduced upon the question of flight. ISTeither did he make any remarks indicating his own opinion upon that question or suggesting the conclusion which should be arrived at by the jury. In short, he did not “comment thereon.”

The contention that this instruction, does not state the law is based upon the proposition, if we understand appellant’s argument, that the court should have gone further and informed the jury that the circumstances explaining ■or excusing flight should be taken into- consideration, and no doubt tbe jury should be so instructed in eases where the evidence warrants such instruction. Wharton’s Grim. Ev. (9th ed.), §750. But, in this case, there were no facts or circumstances explaining, or tending to explain or excuse, the flight of appellant, and, consequently, no countervailing conditions for the .consideration of the jury. Although the court might properly have charged the jury that the flight of the accused would not, by itself, warrant a conviction, yet the omission to do so did not, in our opinion, vitiate the instruction as given. Indeed, this instruction plainly implies that a conviction -might, not be based solely on the fact of flight. In State v. Gee, 85 Mo. 647, the supreme court of Missouri approved an instruction couched in the following language:

“The court instructs the jury that flight raises the presumption of guilt, and if you believe from the evidence that the defendant, after having shot and killed Minnick, as charged in the indictment, fled the country and tried to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence.”

The instruction given in this case does not state that guilt may be inferred from flight, or even, as was said in the Missouri case, that flight raises the presumption of guilt. It simply says to the jury that evidence of flight may be considered in determining whether the accused was the one who committed the offense, and the court committed no error in so charging the jury.

Lastly, it is contended by appellant that the court erred in refusing to grant a new trial on the ground that the verdict was contrary to the evidence. This contention is absolutely untenable. We have read and carefully considered all the evidence contained in the record, and are thoroughly satisfied that it justifies the verdict of the jury. It is true, one Ingalls, a witness on behalf of the defendant, testified at the trial substantially as follows:

“On the evening of November 3d, about nine or ten o’clock, I called at the Klondike stables and defendant and I went to town and had several drinks together, among other places, at the Judge saloon. About 12 o’clock or thereafter, the defendant left me, stating he was going back to the barn to sleep. After that time I went to the barn, walked into the door, took these saddles from the bam and carried them away. Deatherage was not with me. After I had taken the saddles out, I went upstairs to the place where Deatherage was asleep, and told him what I had done. He remonstrated with me, and said he did not want to have anything to do with it, and if the saddles were taken he would be accused of it.”

Of course, if this testimony was true, appellant was entitled to a new trial. But evidently the jury and the judge, having observed the demeanor of this witness and heard his testimony, disbelieved the statements above set forth. And an examination of his testimony as a whole, even as it appears in the record, is sufficient to convince any unbiased mind that it is wholly unworthy of belief. Although he testified positively and without hesitation, in his examination in chief, that he took the saddles from the bam and afterwards went upstairs where appellant was sleeping and told him what he had done, and that appellant remonstrated with him, he was utterly unable to recount the surrounding circumstances, or to give a more detailed account of the transaction. Dor instance, the following are questions asked this witness on cross-examination, and his answers thereto:

“Q. How many saddles did you take? A. Two. Q. Did you take anything else besides the saddles ? A. No. Q. Are you sure about that ? A. Tes. Q. From where did you take the saddles ? A. I got them in the stable. Q. Did you take the saddles from the same identical place in the stable; were they hanging together at the time you took them ? A. Yes. Q. Where Was Deatherage at this time? A. Upstairs. Q. Did you go upstairs thereafter? A. Yes. Q. Iiow did you get upstairs — by stairs or by ladder ? A. I don’t know. Q. Where was Deatherage sleeping — on a bed or on the floor ? A. I can’t tell you. Q. Why can’t you tell ? A. I don’t know. Q. Who else, or was there any one else in the room with Deatherage at that time? A. I don’t know. Q. How could you see him — was there a light in the room ? A. I don’t know. Q. Describe the room in which Deatherage slept A. I cannot. Where did you put the saddles after taking them? A. I don’t remember. Q. Which way did you go with the saddles after leaving the stable — north, south, east or west? A. I don’t remember. Q. "Where have you been during the last two or three weeks? A. I have been confined in the county jail. Q. In what cell were you confined in the county jail with reference to the defendant Deatherage ? A. I was confined in the same cell. Q. Dor how long a time were you confined in the same cell with Deatherage ? A. Dor several weeks. Q. Have you not been heretofore convicted of felony in the county of Whitman, State of Washington, and served sentence by reason thereof? A. Yes sir.”

It seems plain to us that the testimony of this witness, Ingalls, taken all together, bears upon its face the brand of untruthfulness, and that the jury was fully justified in regarding it as a mere fabrication. But even if In-galls’ testimony were considered as worthy of serious consideration, it was squarely contradicted by other evidence, which the jury had the right to believe, and did believe, and which was clearly sufficient to sustain their verdict. Under such circumstances this court has uniformly declined to award a new trial on the ground of insufficiency of the evidence. See, State v. Ripley, 32 Wash. 182, 72 Pac. 1036, and cases therein cited.

We have discovered no error in the record, and the judgment is, therefore, • affirmed.

Fullerton, C. J., and Hadley, Mount, and Dunbar, J J., concur.  