put it distinctly in issue.' Thus, the prosecution cannot attack the character of the accused, unless he puts it in issue by offering proof of good character; nor can they show bad character by proving particular acts, nor by offering evidence of a tendency or disposition in the accused to commit offences of the class for which he is on trial. But where defendant is a witness, evidence as to his general reputation or character for morality is admissible.' And where defendant was shown to have made certain declarations about himself, his occupation, and residence, it was held that the evidence of a person familiar with his antecedents in another town was admissible to disprove the prisoner's statements. The Maryland statute (Acts 1864, ch. 38,) provides that "any evidence of facts or reputation proving that " a person indicted thereunder for being a "common thief, * is habitually and by practice a thief, shall be sufficient for his conviction, if satisfactorily establishing the fact." On an indictment thereunder it was held that evidence of the character and reputation borne by defendant more than a year before the indictment was admissible, but would not of itself justify a conviction, unless followed up with proof that such reputation continued, and was borne by the accused within the year."

197. Defendant's financial condition before and after the occurrence. The fact that the defendant was in embarrassed circumstances at the time of the theft, is proper to be submitted to the jury as a circumstance, taken in connection with the other evidence, affording a presumption of his guilt." So, also, possession by accused of large sums of money after a larceny of money and bills, where he had none before, is competent evidence, in connection with strong independent circumstances tending to show guilt, though none of the

1 People v. Fair, 43 Cal. 137.

2 State v. Lapage, 57 N. H. 245; State v. Hare, 74 N. C. 391; Young v. Commonwealth, 6 Bush 312; State v. Thurtell, 29 Kan. 148.

3 State v. Day, 100 Mo. 242.

4 People v. Wilkinson, 14 N. Y. Supp. 827.

5 World v. State, 50 Md. 49

Bullock v. State, 10 Ga. 46; Fulmer v. Commonwealth, 97 Pa. St. 503; State v. Cameron, 40 Vt. 555.

money is identified as part of that stolen.' Thus, on the trial of a book-keeper of a bank for the larceny of money from the bank, evidence as to the financial condition of defendant before the alleged larceny and as to certain expenditures by him afterwards, is admissible.'

§ 198. Flight. (a) Admissibility—presumption.—The flight of one charged with crime, and his attempts to escape after capture, are admissible against him. Such flight is a circumstance to be weighed by the jury as tending in some degree to prove a consciousness of guilt, and is entitled to more or less weight, according to the circumstances of the particular case. Such evidence is received not as a part of the res gestœ of the criminal act itself, but as indicative of a guilty mind. Thus, evidence that, after the crime, accused evaded arrest for some time, and after arrest broke jail, and remained at large for some months, and desperately resisted attempts to rearrest him, is competent.' Flight, after indictment found, is evidence of guilt, particularly where the inculpatory evidence is circumstantial. And evidence of flight is admissible whether the case is one of positive or of circumstantial evidence.' The escape of a prisoner during his trial on an indictment is evidence of guilt on a second trial though not con

1 Com. v. Montgomery, 11 Met. 534; 45 Am. Dec. 227; State v. Grebe, 17 Kan. 458; State v. Bruce, 106 N. C. 792.

Perrin v. State, 50 N. W. Rep. 516. To contradict the statement of one charged with the larceny of oxen, that he had killed them and sold the meat on account of a person to whom he had paid the whole proceeds, held that the Commonwealth might prove that on the day of the sale he bought other oxen of another person and paid for them a sum nearly the same, and that he had no pecuniary credit-Commonwealth v. Grose, 99 Mass 423. The rule excluding evidence, which raises a mere conjecture, applied to testimony that after the larceny the defendant bought several articles at a store, and a number of bills were seen in his-pocket-book of the denomination whereof the witness was ignorant -State v. Carter, 72 N. C. 99. 3 Burris v. State, 38 Ark. 221; Anderson v. State, 104 Ind. 467; State v. Rodman, 62 Iowa 456; State v. Stevens, 67 Iowa, 557; State v. Van Winkle, 80 Iowa 15; State v. Williams, 54 Mo. 170.

4

+ People v. Stanley, 47 Cal. 113; People v. Welsh, 63 Cal. 167.

5 Williams v. Commonwealth, 85 Va. 607.

• Williams v. State, 22 Tex. App. 497; Waite v. State, 13 Tex. App. 169. Hart v. State, 22 Tex. App. 563, disapproving Williams v. State, 43 Tex.

182.

clusive.' The flight of one accused of robbing the mails, under an assumed name, coincident with the theft of letters traced to his possession unexplained, tends strongly to show guilt. Testimony of the sheriff as to his search for defendant, tending to show flight, is admissible.'

2

(b) A circumstance for jury—no presumption.-No legal presumption of guilt arises from the flight of the accused, but it is a circumstance for the consideration of the jury. Thus, the fact that the accused gave "straw bail," and forfeited his recognizance by voluntary absence, taken in connection with the further fact that such party passed under various aliases, may be considered by the jury, on the trial, as evidence bearing on the question of his guilt. It is admissible in evidence for whatever the jury may consider it worth, as an inculpatory circumstance."

(c) Explanation by defendant.-Evidence explaining why defendant broke jail is admissible.' And it is error to refuse him an opportunity to explain it.* An instruction that, if the flight of the accused was proved, it must be satisfactorily explained as consistent with his innocence, is misleading. The fact of flight merely tends to prove guilt, and he need not prove an innocent purpose beyond doubt. But where the prosecution does not attempt to prove guilty flight by the accused, he cannot give evidence to account for it."

1 Murrell v. State. 46 Ala. 89; 7 Am. Rep. 592.

2 United States v. Jackson, 29 Fed. Rep. 503.

3 People v. Fine, 77 Cal. 147.

4 People v. Ah Ngow, 54 Cal. 151; 35 Am. Rep. 69; Sewell v. State, 76 Ga. 836; Com. v. Annis, 15 Gray, 197; State v. Moore, 101 Mo. 316.

5 Barron v. People, 73 Ill. 256.

Mathews v. State, 9 Tex. App. 138.

State v. Mallon, 75 Mo. 355.

8 Walters v. State, 17 Tex. App. 226. Fox v. People, 95 Ill. 71.

10 People v. Clark, 84 Cal. 573.

CHAPTER XXV.

SHOWING LARCENY OF OTHER PROPERTY, OR OTHER DISTINCT

OFFENSE.

§ 199. When admissible, generally.

200. To show intent, or develope the res gestæ. 201. Two offenses part of same transaction.

§ 199. When admissible, generally.-Evidence of one distinct substantive offense is generally inadmissible on the trial of another, but may be resorted to in some cases; e. g., where the offense charged and that proposed to be proved constitute but one transaction, or to prove the identity of the offender; where it is necessary to prove a motive, and there is an apparent connection between the criminal act proposed to be proved and that charged; where the accusation involves a series of criminal acts which must be proved to make out the offense; where it is necessary to prove a scienter, and the like.' Thus, upon a trial for larceny, it cannot be shown that defendant has at other times stolen other property. And the omission of the court in its charge to limit this kind of evidence to its proper sphere is reversible error.' Thus evidence of a dis

1 Gassenheimer v. State, 52 Ala. 314; Dunn v. State, 2 Ark. 229; 35 Am. Dec. 54; Ingram v. State, 39 Ala. 247; 84 Am Rep. 782; Com. v. Campbell, 7 Allen 541; 83 Am. Dec. 705; Com. v. Riggs, 14 Gray 376; 77 Am. Dec. 333; Gilbraith v. State, 41 Tex. 567; Jones v. State, 14 Tex. App. 85; Kelley v. State, 18 Tex. App. 262; Conley v. State, 21 Tex. App. 495; Carter v. State, 23 Tex App. 508; Hanley v. State, 28 Tex. App. 375; Van Musgrave v. State, 28 Tex. App. 57. But see Walker's case, 1 Leigh, 574.

People v. Hartman, 62 Cal. 562; People v. Cline, 83 Cal. 374; Miller v. Commonwealth, 78 Ky 15; State v. Reavis, 71 Mo 419; Boland v. People, 19 Hun 80; English v. State, 15 S. W. Rep 649; Clark v. State, 17 S. W. Rep. 1089. On a prosecution for larceny, where an officer testifies as to conversations with defendant as to the crime in question, it is error to allow him also to testify to other conversations with him, relating solely to other crimes committed by him, and tending to show that defendant is a notorious thief.-Commonwealth v. Campbell, (Mass.) 30 N. E. Rep. 72.

3 Carter v. State, 23 Tex. App. 508; People v. Jacks, 76 Mich. 218; Alexander v. State, 21 Tex App. 406; Barton v. State, 18 Ohio, 221.

3

tinct offense not charged in the indictment is inadmissible as matter in aggravation of a fine imposed by statute.' And on trial for larceny of a horse, evidence of the larceny of a saddle afterwards is inadmissible, and, if admitted by defendant, cannot be considered by the jury.' So association with horse thieves, or a subsequent conspiracy to steal horses, cannot be proved on a trial for horse stealing. And on an indictment for larceny and receiving, testimony of a witness that, two or three years before, defendant had joined in an agreement to rob the same store which lost the stolen goods, together with evidence that he forfeited his bond in the present case, and evaded rearrest, is insufficient to entitle the State to have the case submitted to the jury. Again, on trial for the theft and illegal branding of an animal it is error to admit evidence of other thefts and brandings which fails to show that they were done at the same time as the offenses of which defendant is accused; and such error is not rendered harmless by withdrawing from the jury the consideration of such evidence.' But evidence which tends directly to prove the defendant's guilt of the offense charged is admissible, although it may also tend to prove a distinct felony, and thus prejudice the accused." Thus the State may show that other articles lost at the time of the alleged theft were found in defendant's possession, together with those mentioned in the indictment." In such a case the prosecution may be compelled to elect upon which of the charges they will rely."

1 Ingram v. State, 39 Ala, 247; 84 Am. Dec. 782.

Endaily v. State, 39 Ark. 278.

3 Cherry v. State, 7 Ohio 222.

4 State v. Eller, 104 N. C. 853.

5 Welhausen v. State, (Tex.) 18 S. W. Rep. 300.

State v. Folwell, 14 Kan. 105.

State v. Weaver, 104 N. C. 758.

Engleman v. State, 2 Ind. 91. A witness for the prosecution, who had feigned complicity in the crime, was asked by the prosecuting attorney whether there had been a good deal of trouble from stealing in that vicinity. The answer tended to explain why the witness had feigned complicity. Held, that it could not have prejudiced the accused, as tending to prove him guilty of larcenies other than that with which he was charged.-People v. Bollinger, 71 Cal. 17. On trial for stealing a hog, the property of some person to the jurors unknown, the testimony of witnesses, living in defend.