already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts. The ordinary situation presenting these conditions is an affray or a railroad accident. But the principle itself is a broad one.'
It is clear, therefore, that the evidence as to the spontaneous exclamation of the deceased was properly admitted at the trial.
Counsel for the defendant argues, however, that the evidence should have been excluded because the witness who testified that the statement was made, did not also testify that the attack had taken place. It is apparently contended that the testimony in question would have been admissible as part of the res gestae only if it had been elicited from the witness who had previously told the story of the defendant's attack on the deceased. There is no basis for the suggested distinction either on principle or authority, and no authority is cited by counsel in support of his argument. It appears to be entirely lacking in merit. Preceding witnesses had testified that the defendant stabbed the deceased with a knife. Another witness then testified that he saw the deceased turn around and heard him exclaim, 'I've been stuck'. Obviously, all of the evidence must be considered together. In fact, a parallel situation is encountered in many of the cases which sustained the admissibility of such evidence. On this basis the spontaneous exclamation was clearly part of the res gestae and, therefore, properly admitted.
It may be observed that this evidence did not play an important part at the trial. Unlike similar declarations that have been admitted in some of the cases discussed above, in this instance the deceased in his spontaneous exclamation did not identify his assailant, but merely indicated that he had been stabbed. The fact that the defendant died as a result of a wound in the neck caused by stabbing, was independently established by medical testimony; and the fact that he was stabbed with a knife during the altercation was also shown by the testimony of other bystanders, who saw the defendant brandish a knife in his right hand and then strike the deceased in the neck.
The defendant further contends that it was error to permit Government counsel to inquire of the defense witness Ella Jones on cross-examination whether a meretricious relationship existed between her and the defendant. The witness, however, declined to answer the question and the matter was not pursued. Consequently the point is moot. The question was, however, obviously admissible, first, in order to show her interest and bias in favor of the defendant; and second, as affecting her character and, therefore, her credibility. The Supreme Court has held that cross-examination for the purpose of putting a witness in his proper setting is not only permissible, but is a matter of right, Alford v. United States, 282 U.S. 687, 692, 51 S. Ct. 218, 75 L. Ed. 624. In Tla-koo-yel-lee v. United States, 167 U.S. 274, 17 S. Ct. 855, 42 L. Ed. 166, which involved an indictment for murder, the defendant's wife, who took the stand in behalf of the prosecution, was asked on cross-examination whether she was living with a male witness who had previously testified in behalf of the Government. An objection to this question was sustained. The Supreme Court held that this ruling was erroneous and that the error was of sufficient importance to require a reversal of the conviction, although no other error was discussed in the opinion. The following cases also hold that such a question is permissible: Thomas v. David, 7 C.& P. 651; Perdue v. State, 126 Ga. 112, 54 S.E. 820.
Still another ground advanced in support of the motion for a new trial, is the court's refusal to give an additional charge on the effect of the defendant's flight from the scene of the crime. The court's instructions to the jury contained the following observations on this point:
'There is evidence tending to show that the defendant fled from the scene immediately after Brock was wounded. The defendant denies that he fled. If you find that in fact he did flee from the scene, you have a right to consider this fact as a consciousness of guilt, if you deem it proper to do so.'
No exception was taken to this instruction. It is well settled on the basis of human experience that flight may be considered as some indication of a consciousness of guilt, Liggins v. United States, 54 App.D.C. 302, 307, 297 F. 881; Kanner v. United States, 7 Cir., 34 F.2d 863, 866. As was said by Wilbur, J., in Strom v. United States, 9 Cir., 50 F.2d 547, 548, 'Flight is always an evidence of guilt.' 'The wicked flee when no man pursueth', Proverbs 28:1.
Counsel for the defendant requested the court to elaborate and enlarge these remarks, by giving an additional charge to the effect that the defendant claimed that he ran from the scene not for the purpose of avoiding arrest, but because he feared attack by Brock's male companion. The court declined to instruct the jury further on this point, inasmuch as the entire matter had been left to the jury as a question of fact, and the original instruction called to the jury's attention the defendant's denial that he fled. Moreover, the defendant's contention that he ran away to avoid reprisals is contradicted by the fact that he failed to return when this danger was past, but was found by the police at his home an hour or two later. The present contention, therefore, appears to be without merit. It may be added that in the course of the charge to the jury, the court emphasized that his comments on the facts and on the evidence were not binding on the jury, that only such weight need be attached to them as the jury deemed proper, and that the jury were the final judges of the facts.
Finally, counsel for the defendant urges that it was error to permit Government counsel to inquire of the defendant on cross-examination whether it was not a fact that the court set bail in the sum of $ 1,500 and that, therefore, the defendant had an opportunity to obtain his release from incarceration while awaiting trial, if he had been able to secure a bond. While standing alone, this question seems irrelevant, it was actually proper, since on the direct examination, counsel for the defendant took great pains to elicit from the witness the fact that he had been in jail continuously from the time of his arrest, which took place an hour or two after the murder, and that he was a denizen of that institution at the time of the trial. Why this question was asked by defense counsel remains a mystery to the court, unless it was intended to create the impression on the jury that the defendant had been oppressed and harshly treated in a manner out of the ordinary. If so, the cross-examination on this point was manifestly germane to the direct examination. Actually, the defendant is not in a position to complain. The question asked by Government counsel was more likely to assist the defendant than to aid the prosecution, since it tended to give rise to an inference that the crime was not of sufficient gravity to require bail of more than $ 1,500. In any event, the matter was a passing and an inconsequential triviality that did not affect the course of the trial. See Bracey v. United States, 79 U.S.App.D.C. 23, 27, 142 F.2d 85.
Because of the vital importance of the matter to the defendant, great leeway was accorded to his counsel in cross-examining prosecution witnesses and in the direct and re-direct examination of his own witnesses. In order to accord him every opportunity to make as full a defense as he desired before the jury, the court at times even permitted defense counsel to propound inquiries whose exclusion would have been required by a strict application of the rules of evidence.
The court has no doubt of the defendant's guilt or any misgiving as to the justice of the conclusion reached by the jury. The crime of which the defendant stands convicted was a cruel and vicious act. It displayed a dire wickedness and a total disregard for the sanctity of human life with irretrievable and disastrous consequences to a harmless young man, whose life was suddenly snuffed out without reason or justification.
The motion for a new trial is denied.
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