Opinion of the Court. but lived in the neighborhood. Wilson told him to take one of the horses and they would ride to the owner's house, and if he would not consent to Hickory riding away on it, it could be returned. He again said all right, and put the bridle on the horse, Wilson telling him to hurry up and get his saddle; that he started to go into the house after his saddle, and when he was about three steps from the porch he heard the fire of a gun, and turning around saw Wilson with a revolver in his hand and smoke coming from it; that he did not run after the first shot, but walked on towards the house, when a second shot was fired just as he was about to enter the front door. That he went into the house and shut the front door, intending to go out through a side room door and run off. When he had gotten about as far as the middle door of the side room he discovered Wilson coming in through the outside door of the side room with his pistol raised at him (indicating the pointing of a pistol); that he then ran to the east side of the front room, got his gun, and went to the front door. The marshal then appeared at the middle door of the side room, exposing himself just enough to shoot, which he did, and that he (the accused) returned the fire, which was followed by further firing between them. The marshal then disappeared from the door and went into the yard and fell down close by the wagon. He (the accused) ran off and remained a half an hour, and on coming back found the marshal dead; he became frightened and did not know what to do, and, indeed, did not know all that he did do; he put the body of the marshal on the wagon, and hauled it about a mile and a half from the house, and then threw it out at the head of the gulch. When he returned after doing this he found the marshal's horse wounded in the knee. He took off the saddle and bridle and hid them, and also the coat which was tied to the saddle and the marshal's pistol and belt. 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 Opinion of the Court. 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; that the marshal came around to the outside room door with a pistol in his hand, and told her to get out of the way; that she went a quarter of a mile off, and had nothing to do with the moving of the body of the deceased. The accused, moreover, introduced the testimony of a physician who had examined the body of the deceased, and who contradicted the statement that there was a fracture in the skull of the deceased, and said there were two scalp wounds, one on the top of the head and the other in the back; "they had the appearance of some blunt substance striking the head, or the head striking the substance." The opinion formed by us as to three of the assignments of error will render an examination of the others unnecessary. The three which we will consider are as follows: "4th. Because the court in commenting on the inculpatory testimony as to the acts of the defendant with reference to the body of the deceased, the alleged killing of the horse, in reference to what is charitable or brutal conduct, gives undue prominence to the inculpatory facts, without summing up all the testimony, as well for as against the defendant in reference to this branch of the case." "7th. Because the court, a second time in the charge in going over the alleged conduct of the defendant subsequent to the killing, and his conduct in flight, gives undue prominence to the inculpatory facts, and gives them in a way that have the effect of an argument against the defendant, and are not a proper, full summing up of the facts upon this branch of the case." "11th. Because the court bears upon and gives undue prominence to the flight of defendant, and treats it absolutely as true that defendant concealed the blood, killed the horse, and destroyed the evidence of the alleged killing." It is contended by the defendant in error that of these assignments the fourth and seventh are not sufficiently specific to merit consideration, because they do not point out the exact Opinion of the Court. words in the charge of the court complained of. The assignments are in exactly the same language as were the exceptions taken during the trial and which the record declares "the defendant presented at the time." Whilst it is true that the assignments do not in terms state the precise language used by the court, they yet indicate the subject-matter in the charge to which the exceptions relate with sufficient clearness to enable us from a mere inspection of the charge to ascertain the particular matter referred to. In considering, when this case was previously before us, a similar objection to the adequacy of an exception, we said: "The rule in relation to exceptions to instructions is that the matter excepted to shall be so brought to the attention of the court, before the retirement of the jury, as to enable the judge to correct error, if there be any, in his instructions to them, and this is also requisite in order that the appellate tribunal may pass upon the precise question raised, without being compelled to read the record to ascertain it." It is here unquestionable on the very face of the bill of exceptions that the objections were reserved before the retirement of the jury, and that the trial court was fully aware of their import and had the opportunity to make such corrections, if any, as its judgment may have deemed necessary to prevent the charge from being misunderstood by the jury. This is made clear not only by the language of the bill of exceptions, but also by the charge itself, which contains a statement by the court, entirely inconsistent with a possibility of there having been any surprise or misconception. The court said: "There is a little bit of history on that, and I apprehend the gentlemen won't take any exception to reading from this book" (the Bible). "There are a great many exceptions filed here to almost everything said by the court, but I hope they won't take any exception to this." The first comments of the court upon the facts in reference to concealment (covered by the fourth assignment) and its instruction as to the weight to be given the proof on the subject of the flight of the accused (covered by the eleventh assignment) are so connected in the charge as to cause the examina Opinion of the Court. tion of the one to necessarily involve the other. We shall, therefore, examine at the same time the errors complained of in these two assignments. First. Errors complained of in the fourth and eleventh assignments. 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, and his conduct when connected with an act of that character will be entirely different from the conduct of a man who is conscious of wrong and guilt. In the one case he has nothing to conceal; in the one case his interest and self-protection, his self-security, prompts him to seek investigation, to see to it that it is investigated as soon as possible. This is no new principle. I say it is as old as the days of the first murder. There is a little bit of history on that, and I apprehend the gentlemen won't take any exceptions to reading from this book. There are a great many exceptions filed here, to almost everything said by the court, but I hope they won't take any exceptions to this. There is a little bit of history illustrative of the conduct of men: "And Cain talked with Abel, his brother; and it came to pass, when they were in the field, that Cain rose up against Abel, his brother, and slew him. "And the Lord said unto Cain, where is Abel, thy brother? And he said, I know not. Am I my brother's keeper? "And He said, what hast thou done? the voice of thy brother's blood crieth unto Me from the ground.' 666 "Am I my brother's keeper?' From that day to the time when Professor Webster murdered his associate and concealed his remains, this concealment of the evidence of crime has been regarded by the law as a proper fact to be taken into consid Opinion of the Court. eration as evidence of guilt, as going to show guilt, as going to show that he who does an act is consciously guilty, has conscious knowledge that he is doing wrong, and he, therefore, undertakes to cover up his crime. "Now, there may be exceptions to the general rule. 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 towards concealing this act of the killing of Wilson; what these acts were; if they were cruel, if they were unnatural, if they were barbarous, if they were brutal, you still have a right, and it is your duty to take them into consideration. 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. All these things are facts that you must take into account, and not only that, 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 in this case. Therefore, the law says that if after a man kills another that he undertakes to fly, if he becomes a fugitive from justice, either by hiding in the jurisdiction, watching out to keep out of the way of the officers, or of going into the Osage country out of the jurisdiction, that you have a right to take that fact into consideration, because it is a fact that does not usually characterize an innocent act." It is undoubted that acts of concealment by an accused are competent to go to the jury as tending to establish guilt, yet they are not to be considered as alone conclusive, or as creat |