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consequences, but at the same time it may possibly be according to the frame of mind, merely an inclination to consult his safety by flight rather than stand his trial on a charge so heinous and scandalous as this."

So, again, at p. 88, the same writer says: "So also is the concealment of death by the destruction or attempted destruction of human remains, (a presumption of guilt,) but in this case the presumption of criminality results from the act of concealment rather than from the nature of the means employed, however revolting, which must be regarded only as incidental to the fact of concealment, and not as aggravating the character and tendency of the act itself. Where a prisoner tried for murder admitted that he had cut off the head and legs from the trunk of a female, and concealed the remains in several places, but alleged that her death had taken place by accident while she was in his company, and that in the alarm of the moment, and to prevent suspicion, he had determined to conceal the death, Lord Chief Justice Tindal told the jury that the concealment of death under such circumstance had always been considered to be a point of the greatest suspicion, but that this evidence must be received with a certain degree of modification, and especially in a case where the feelings might be excited by the singular means of concealment adopted by the prisoner; that this point of evidence was, therefore, for the consideration of the jury, and it was for them to show how far it was proof of the prisoner's guilt, but the mere general fact of concealment, added the learned judge, is to be considered, and not the circumstances under which it took place."

The text-writers generally state the principle in accordance with the foregoing.

"Few things," says Best on Presumption, p. 323, "distinguish an enlightened system of judicature from a rude and barbarous one more than the manner in which they deal with evidence. The former weighs testimony, whilst the latter, conscious perhaps of its inability to do so or careless of the consequences of error, at times rejects whole portions en masse, and at others converts pieces of evidence into rules of

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law by investing with conclusive effect some whose probative force has been found to be in general considerable. If any proof of this were wanted it would be amply supplied by our law with reference to the species of evidence under consideration. Our ancestors, observing that guilty persons usually fled from justice, adopted the hasty conclusion that it was only the guilty who did so, according to the maxim 'fatetur facinus qui fugit judicium,' so that under the old law, a man who fled to avoid being tried for felony forfeited all his goods even though he were acquitted; and the jury were always charged to inquire not only whether the prisoner were guilty of the offence, but also whether he fled for it, and, if so, what goods and chattels he had." This practice was not formally abolished until the Stats. 7 and 8 Geo. IV, c. 28, sec. 5. "In modern times more correct views have prevailed, and the evasion of or flight from justice seems now nearly reduced to its true place in the administration of the criminal law, namely, that of a circumstance-a fact which it is always of importance to take into consideration, and combined with others may afford strong evidence of guilt, but which, like any other piece of presumptive evidence, it is equally absurd and dangerous to invest with infallibility." And this is quoted with approval in Burrill on Circumstantial Evidence, p. 473. See also Roscoe's Criminal Evidence, 8th American ed. p. 30. Mr. Wharton, in his Criminal Evidence, after referring in a note to the American authorities, states the rule in accordance with the foregoing, and concludes: "The question, it cannot be too often repeated, is simply one of inductive probable reasoning from certain established facts. All the courts can do when such inference is invoked is to say that escape, disguise, and similar acts afford, in connection with other proof, the basis from which guilt may be inferred, but this should be qualified by a general statement of the countervailing conditions, incidental to a comprehensive view of the question."

In a foot note at p. 645 this author collects several marked and peculiar instances where a person had fled who was undoubtedly innocent. One of these instances is this: "Dr.

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Thomas Fuller gives the following quaint excuse for running away from London when charged with treason: And if any tax me, as Laban taxed Jacob, 'Wherefore didst thou flee away secretly without taking solemn leave?' I say with Jacob to Laban, 'Because I was afraid.' And that plain dealing patriarch, who could not be accused for purloining a shoe latchet of other men's goods, confessed himself guilty of that awful felony that he 'stole away' for his own safety; seeing truth may sometimes seek corners, not as fearing her cause, but as suspecting her judge."

Thompson on Trials, Tit. 6, c. 69, § 2543, makes this statement: "It is often inaccurately said that the flight of the accused creates a presumption of his guilt, and this presumption is sometimes inadvertently dealt with as though it was a presumption of law. But it belongs to that class of presumptions which are generally classified as presumptions of fact. If it were a presumption of law, the jury would be bound to draw it in every case of flight, and the court might so instruct them; whereas it is merely a circumstance tending to increase the probability of the defendant's being the guilty person, which on sound principle is to be weighed by the jury like any other evidentiary circumstance."

Measuring the correctness of the charge now considered by these principles and authorities, it is at once demonstrated to have been plainly erroneous. It magnified and distorted the proving power of the facts on the subject of the concealment; it made the weight of the evidence depend not so much on the concealment itself as on the manner in which it was done. Considering the entire context of the charge, it practically instructed that the facts were, under both divine and human law, conclusive proof of guilt. The statement that no one who was conscious of innocence would resort to concealment was substantially an instruction that all men who did so were necessarily guilty, thus ignoring the fundamental truth, evolved from the experience of mankind, that the innocent do often conceal through fear or other emotion. The legal influence which this language must have exerted on the jury was increased by the subsequent instruction that it was as old

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as the first murder for the conduct of an innocent person to be different from that of a guilty one. Putting this language, in connection with the epithets applied to the acts of concealment and the vituperation which the charge contains, it is justly to be deduced that its effect was to instruct that the defendant was a murderer, and, therefore, the only province of the jury was to return a verdict of guilty. 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. It was as follows: "And not only this, but the law recognizes another proposition as true, and it is that, 'the wicked flee, when no man pursueth, but the innocent are as bold as a lion.' That is a self-evident proposition that has been recognized so often by mankind that we can take it as an axiom and apply it to this case." This instruction was tantamount to saying to the jury that flight created a legal presumption of guilt, so strong and so conclusive, that it was the duty of the jury to act on it as an axiomatic truth. On this subject, also, it is true, the charge thus given was apparently afterwards qualified by the statement that the jury had a right to take the fact of flight into consideration, but these words did not correct the illegal charge already given. Indeed, taking the instruction that flight created a legal presumption of guilt with the qualifying words subsequently used, they were both equivalent to saying to the jury that they were, in considering the facts, to give them the weight which, as a matter of law, the court declared they were entitled to have, that is, as creating a legal presumption so well settled as to amount virtually to a conclusive proof of guilt. In Starr v. United States, 153 U. S. 614, 626, in considering the power of a Federal court to comment in charging a jury on the evidence, we quoted with approval the language of the Supreme Court of Pennsylvania, Burke v. Maxwell, 81

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Penn. St. 139, 153, saying: "When there is sufficient evidence upon a given point to go to a jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided." The charge given in this case violates every rule thus announced. It was neither calm nor was it impartial. It put every deduction which could be drawn against the accused from the proof of concealment and flight, and omitted or obscured the converse aspect. In so doing it deprived the jury of the light requisite to safely use these facts as means to the ascertainment of truth. Nor can it be considered that the language subsequently used corrected the error. Now (says the charge) there may be exceptions to the general rule. General as it is, it may have its exceptions." But none of the exceptions thus referred to were called to the attention of the jury. Indeed, taking the language of the charge which follows the foregoing words, it must have conveyed, by the strongest possible intimation, the impression to the jury that the case before them was controlled by the general rule previously stated to them by the court, although other cases might be an exception to such rule. For these reasons the judgment must be reversed. In this state of the case it would ordinarily be unnecessary to consider the other assignments. As, however, the case is before us for the second time, and must be remanded for a new trial, the ends of justice will best be subserved by passing on the remaining assignment, that is to say, the eleventh assignment. The portion of the charge to which this assignment is addressed is as follows:

"And then, again, there stands before you a witness who was there, a positive witness, who saw this killing. That witness is the defendant. Bear in mind when you are passing upon this case that the other witness to it cannot appear before you, he cannot speak to you, except as he speaks by his body as it was found, having been denied even the right of decent burial, by the dead body of his horse by the concealed weapons