JUDGES: Crockett, J. Mr. Justice McKinstry concurred specially in the judgment. Mr. Chief Justice Wallace did not express an opinion.
OPINION
CROCKETT, Judge
It is assumed by counsel that this case is precisely similar to the case of People v. Stanly, 47 Cal. 114, and it is claimed that the judgment should be reversed on the authority of that case. But on looking into the record we find them to be materially different. In that case all the evidence was not before us; and it did not appear that when the four persons accused of the robbery were arrested, no greenbacks were found in their possession. The point which was pressed on the argument of that appeal was, that the evidence of the flight of McGovern was not admissible as a badge of the guilt of the defendant on trial. Considering it solely in that light, we held the evidence to be inadmissible on the facts as then presented. But in the present case it appears that, on the arrest of the four suspected persons, no portion of the greenbacks of which Simmonson was robbed was found in their possession when searched at the station-house. But it was proved that in attempting to escape, McGovern was pursued by the officer for several blocks, and, during his flight, may have thrown away the greenbacks. The evidence was competent as tending to show that he thus had the opportunity after his arrest to dispose of the fruits of the robbery without detection. If the Court, in admitting the evidence, omitted to limit it to this purpose, it was the duty of the counsel to call attention to the fact, and to request a proper charge from the Court on the point. Not having done so, and the evidence being competent for the purpose above indicated, he cannot complain that it was inadmissible for some other purpose.
Judgment affirmed. Remittitur forthwith.