The opinion
Griffith, J.,
delivered the opinion of the court.
Appellant was indicted, tried, and convicted for a violation of the statute, chapter 328, Laws 1932, which makes robbery by the exhibition of a deadly weapon a capital offense. The jury fixed the penalty at death, and appellant assigns as error, not that he was unjustly convicted, but that certain testimony was erroneously introduced, as contended by appellant, which influenced the jury to impose the death penalty instead of imprisonment in the penitentiary.
There were no eyewitnesses to the robbery except the person robbed and the robber. The person robbed testified that he was held up and robbed at the point of a gun exhibited in a threatening manner by a negro who was masked. He said that he had never seen the robber before and did not know him, and because of the mask he was not able positively to identify appellant in court. The state then introduced evidence of a confession made by appellant; but if the state had there rested, and appellant had taken the stand and repudiated the confession, the state’s case would have been in some jeopardy because of the failure of the prosecuting witness to make his identification positive.
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The state, therefore, introduced a witness who testified that he was in the neighborhood of the robbery, and having heard of it, he went at once to the reported scene, arriving there within a few minutes; and in the woods about fifty yards from the place where the robbery was reported to have occurred, he found appellant; and that when lie saw appellant, the latter had a rifle to his shoulder pointed at the witness, and that witness then pulled his pistol and called to appellant to put his rifle down, which was not done, and almost immediately both the witness and appellant shot, a hullet from the rifle striking the witness and breaking his leg; that thereupon (the witness called for help and appellant flan away through the woods.
Appellant urges that the admission of the above testimony was error, because it was of a separate and distinct crime. We think it was competent because it was material upon the identity of the robber, and it threw light upon the question of his guilt of the robbery. Rosetto v. City of Bay St. Louis, 97 Miss. 409 , 52 So. 785 . The fact that appellant was found within a few minutes in a short distance from the place of the robbery was some evidence that he was the guilty party; but the further fact that as soon as seen there he was in readiness to shoot the witness who thus saw him, throws a flood of light upon the issue of his identity as the guilty party, for if he had simply happened to be near the place but had been guilty of no crime there, it is far from probable that he would have proceeded at once to- level his gun upon and to shoot the witness who there found him.
The state also introduced the sheriff and proved the flight of appellant and his subsequent capture, and while not insisting that evidence of flight is not, as a general rule, admissible, appellant complains that the evidence here was of a flight from the subsequent crime, and not from the robbery. But the two crimes were so closely
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related in point of time that the flight from one could not be shown without showing the other, unless the court were obliged to exclude any evidence at all of the second crime; and this we have already discussed.
Affirmed, and Friday, December 14, 1934, is fixed as the date for the execution of the sentence.
Affirmed.