Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
Appellant was convicted of armed robbery. His previous conviction of the same offense was reversed for error in admitting a purported confession. State v. Petrolia , 21 N.J. 453 (1956). The present appeal is predicated upon an alleged error in the charge of the trial court on the subject of flight by an accused, and on asserted improper limitation in the cross-examination of a self-confessed accomplice.
The record discloses that Petrolia was arrested and charged with the crime on August 7, 1950. He was released in
substantial bail and shortly thereafter disappeared. Four years later he was located in Chicago where he was living and working under an assumed name. Extradition was waived and he was returned for trial. The explanation given at the trial for his departure was not persuasive.
In charging the jury on the subject the court said:
"There has also been brought out in the testimony the fact that the defendant, Benjamin Petrolia, left the jurisdiction of the State of New Jersey and went to Chicago, Illinois, and there changed his name, while he was under bail, and that he was picked up there about four years later on a fugitive warrant. In the law that is what is known as flight. The courts have held that flight does not carry with it a rebuttable presumption of guilt, because there can be no presumption of guilt in a criminal matter, and is merely a circumstance which may tend to show consciousness of guilt, which should be weighed by the jury with all other facts and circumstances. Unexplained flight by a person charged with crime is sufficient to raise an inference of guilt."
The asserted objection thereto was as follows:
"The next point, your Honor, is number 9. Your Honor has correctly charged the law of flight as far as your Honor went, but your Honor did not say as requested, and as is proper to charge, that he gave an explanation for the flight, namely, fear of a repetition of the police brutality."
Obviously, the criticism has to do with the failure to discuss the factual explanation given by the defendant for leaving the State and the failure to charge request number 9 in that connection as presented by the defense. The text of the request makes plain this conclusion. It is:
"9. Flight by a person accused of crime, when unexplained, raises an inference or presumption of guilt. Such inference or presumption is rebutted by the defendant's testimony that he left the State of New Jersey because he feared a repetition of the specific brutality inflicted upon him by the Paterson Police, as put in evidence by the defendant and his witnesses."
Manifestly it would not have been proper to instruct the jury as a matter of law that the defendant's explanation of his flight "rebutted" ...