#### People of the State of New York, Resp’ts *v.*George H. Ogle, Appl’t.

(Court *of Appeals,*

*Filed March*1, 1887.)

1. CRIMINAL TRIAL — EVIDENCE — ADMISSIBILITY ON QUESTION OE FLIGHT.

On the trial of the defendant on an indictment for murder, proof of the-action of the officers in seeking for the prisoner after the crime was committed, was offered and received upon the question of the flight of the prisoner. *Held,*not error.

2. Same — Cross-examination.

Upon the cross-examination of the prisoner he was asked-if he had heen arrested for shooting a man at Miner’s theater, and the answer was admitted under exception, *Held*no error in this case, the prisoner having-proved by his father that he had been arrested and honorably acquitted upon the trial of said charge.

3. Same — Judge’s charge — Accomplice — Corroboration.

The court was asked by the prisoner to charge the jury in relation to the acts necessary for the corroboration of an accomplice, *“*that they must be-inconsistent with the innocence of the defendant, and which exclude every hypothesis but that of guilt,” *Held,*the court’s refusal was correct. That the rule only requires a corroboration as to some material fact which goes to-prove the prisoner was connected with the crime.

4. Same — Credibility of accomplice for a jury to decide.

The credibility of a witness (who was an accomplice) as to facts not corroborated, is for the jury to decide.

*741Appeal from a judgment of tbe supreme court, general term, first department, affirming a judgment of tbe court of sessions of tbe peace of the city and county of New York, convicting defendant of the crime of murder in tbe second degree.

*William F. Howe*for appl’ts; *McKenzie*Semple, Asst. Dist. Atty, for resp’t.

Peckham, J.

Several grounds are stated by tbe counsel for tbe prisoner for granting a new trial, but we think that not one is sufficient. It seems, on the contrary, to be quite a plain case for an affirmance of the judgment. But as the prisoner has been convicted of murder in tbe second degree and sentenced to imprisonment for life, we have not only given full attention to tbe arguments advanced’ by bis counsel, but in reference to the gravity of tbe case we will briefly state tbe reasons for tbe result arrived at by us.

1. Tbe first alleged error consists in permitting proof of tbe action of tbe officers in seeking for tbe prisoner after tbe crime was committed. It was offered and received upon the question of tbe flight of tbe prisoner. The court decided correctly in admitting tbe evidence. Tbe crime was committed on tbe 30th of November, 1882, and a brother of defendant was charged with its commission, and both were arrested that night. The prisoner was present at tbe examination of his brother but was not called as a witness. Tbe brother was subsequently indicted, but was finally discharged on bis own recognizance as there was no proof against him, and at that time none against tbe prisoner. Subsequently, in January, 1884, several persons were arrested and brought down before the district attorney, or some of bis officers, and statements were made by some of them which led the authorities to desire the arrest of the prisoner. The evidence objected to was then permitted to be given by the district attorney, showing what the officer did in order to arrest the prisoner; that he went to his house for the purpose of looking for him but did not find him there, and also to a saloon kept by one Ogle — but not the prisoner, nor was it his home — and ■did not find him', and also searched the neighborhood or vicinity without success, and also made inquiries, but without finding him until September 6,1886, when he was arrested in New York, and he then told the officer, as the officer swore, that he had been in Montana, Kansas city and Montgomery, Alabama, and that if the ■officer had not got him then, he “ was going away to-morrow •evening,” and “ I guess you never would have got me.”

All this evidence was perfectly proper. The district attorney claimed it proved the prisoner had run away, and from that .among other things he might ask the jury to infer guilt. If it did not prove flight, no harm was done. All that could be said was the people had tried to prove a fact and failed; but the *742evidence was so plainly admissible that no argument upon it is required.

2. The next ground taken by counsel for the prisoner to obtain a reversal rests upon the fact that the district attorney,, upon the cross-examination of the prisoner, asked him if he had been arrested for shooting a man at Miner’s theater. The evidence was admitted under the objection and exception of the prisoner’s counsel. Whatever the ruling of the court might otherwise have been, it is clear no right of the prisoner was illegally invaded under the facts of this case, for his counsel had already proved the same fact in the examination of the father of the prisoner, who testified his son had been arrested and honorably acquitted upon the trial of a charge for shooting a man at Miner’s theater, showing conclusively the two examinations referred to the same transaction.-

3. The counsel asked the court to charge the jury in relation to the acts necessary for the corroboration- of an accomplice, “ that they must be inconsistent with the innocence of the defendant and which exclude every hypothesis but that of guilt.” The court refused and counsel excepted. In this the court was clearly right. There is not and never was any such rule as to corroboration. The whole law of evidence will be searched in vain for it. The authorities cited by prisoner’s counsel maintain no such rule. . The rule is stated in one of *them*— People v. *Plath,*100 N. Y., 593;- — and is wholly different from the request herein made. It only requires a corroboration as to some material fact which goes to prove the prissouer was connected with the crime. Another answer is that the witnesses in regard to whom the request was made were not accomplices in any sense of the word. Neither was ever charged with any crime whatever. The most that could be alleged was that one of them, after the crime was committed, had the knife placed in his hand, and he threw it under a chair in the ball-room, to which, be immediately returned after seeing-the prisoner plunge it in the deceased. There is no evidence whatever that either had the least thought that the murder was. to be committed, or in any way aided or abetted in its commission. Even if the rule as to the evidence of an accomplice had been erroneously stated by the court, it was, therefore, wholly immaterial in this case.

4. The court was also asked to charge the jury that it would be justified in requiring every fact sworn to by the witnesses-Rogers and Hopper to be corroborated to its satisfaction, and if not so corroborated, to reject such fact as not proved. The court left the question of the credibility of the witnesses under-proper instructions to the jury. The charge was an eminently fair one, and all the legal rights of the prisoner were therein carefully and fully guarded.

*743The record reveals no error and the judgment must be affirmed.

All concur.