Other courts have also recognized that an inference of negligence may be drawn from a driver's flight from the scene of an accident. See Shaddy v Daley, 58 Idaho 536; 76 P.2d 279 (1938); Lynch v McGovern, 270 So.2d 770 (Fla App, 1973); Busbee v Quarrier, 172 So.2d 17 (Fla App, 1965); Kotler v Lalley, 112 Conn. 86; 151 A 433 (1930); State v Ford, 109 Conn. 490; 146 A 828 (1929); Battle v Kilcrease, 54 Ga. App. 808; 189 S.E. 573 (1936); Harrington v Sharff, 305 F.2d 333 (CA 2, 1962); Brooks v E J Willig Truck Transportation Co, 40 Cal.2d 669; 255 P.2d 802 (1953). Our colleagues state that the cases from other jurisdictions are distinguishable because in those cases there was other evidence of the circumstances of the accident.
While it is true that they were under no legal obligation to do so, the jury, in weighing the evidence, were entitled to draw an unfavorable inference from their failure to testify. State v. Ford, 109 Conn. 490, 496, 498, 146 A. 828; State v. Heno, 119 Conn. 29, 34, 35, 174 A. 181; 94 A. L. R. 701; 8 Wigmore, Evidence (3d Ed.) 2272, 2272a. As regards these defendants, we cannot hold that a refusal to set the verdict aside was erroneous as a matter of law.
A jury is entitled to entertain certain presumptions and draw inferences of fact from such conduct in the nature of admissions against the defendant. We have recently had occasion to consider these upon a very similar state of facts in the criminal case of State v. Ford, 109 Conn. 490, 146 A. 282, where we said at page 496: "The conduct of the accused in leaving the bodies of the girls [he had struck] lying in the road while he sped on with his car . . . may be considered by the trier in determining his guilty since it tends, unexplained, to prove a consciousness of guilt." In that case as in this, the defendant failed to take the stand to explain the occurrence, and we said (p. 497) and now reaffirm, that "the privilege of refraining from testifying, if he so elect, does not protect him from any unfavorable inference which may be drawn by his triers from his exercise of the privilege."
In several States the statutes have been construed as forbidding all reference by the trial judge in his charge to the silence of the accused. Times v. Commonwealth, 25 Ky. Law Rep. 1233; Hanks v. Commonwealth, 248 Ky. 203; State v. Pearce, 56 Minn. 226; State v. Long, 324 Mo. 205; Mason v. State, 53 Okla. Cr. R. 76; Thompson v. State, 88 Tex.Crim. 29; Kinney v. State, 36 Wyo. 466; cf., State v. Ford, 109 Conn. 490; Tucker v. State, 29 Ga. App. 221.
People v. Connelly, 253 N.Y. 330, 171 N.E. 393, affirming 227 App. Div. 167, 237 N.Y.S. 303, followed in People v. Seely, App. Div., 237 N.Y.S. 338. See, also, note 57, 22 C.J.S., Criminal Law, § 594, p. 911, citing authorities, that failure to introduce important testimony relating to facts peculiarly within his knowledge raises an inference or presumption that such testimony would have been unfavorable to accused. Cf. United States v. Fox, 2 Cir., 97 F.2d 913; also State v. Ford, 109 Conn. 490, 146 A. 828; State v. Headley, 113 N.J.L. 335, 17 A. 572; also Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 898, 40 L. Ed. 1090, wherein the court said: "Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or accounted for in some way consistent with innocence." We think the verdict of the jury was amply warranted by the evidence as to both of the appellants, and the judgments appealed from are affirmed.
8 J. Wigmore, Evidence (McNaughton Rev. Ed. 1961) 2259a, p. 354. That the privilege extended to only natural persons is evident from our observation in State v. Ford, 109 Conn. 490, 496, 146 A. 828 (1929), that "[t]he history of the development of the privilege discloses that the object sought to be obtained thereby was the prevention of the employment of legal process to extract from the person's own lips an admission of his guilt which would then take the place of other evidence." (Emphasis added.)
Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). Long before the legislature enacted 54-84 (b), we said, in State v. Ford, 109 Conn. 490, 499, 146 A. 828 (1929), that "[t]he fact that an accused has chosen not to take the stand is a fact in the case which the jury are entitled to treat as they treat any fact established by the evidence, giving it more or less weight as the circumstances may justify." This case demonstrates that it is not inherently unreasonable to draw an inference of guilt from the defendant's silence.
The history of the development of the privilege discloses that the object sought to be attained thereby was the prevention of the employment of legal process to extract from the person's own lips an admission of his guilt which would then take the place of evidence." State v. Ford, 109 Conn. 490, 496, 146 A. 828 (1929). We have also noted that compulsion which makes a suspect or accused the source of real or physical evidence has been held not to violate a person's constitutional rights as it is not such as compels "communications" or "testimony"; State v. Chesney, supra; and in this respect we cited the following examples.
General Statutes 54-84 (b) reversed prior case law which held that a defendant who did not testify at trial was not entitled to have the jury instructed that his failure to testify should not be considered as an inference against him. State v. Lane, 179 Conn. 327, 426 A.2d 297 (1979); State v. Branham, 171 Conn. 12, 368 A.2d 63 (1976); State v. Ford, 109 Conn. 490, 146 A. 828 (1929); State v. Colonese, 108 Conn. 454, 143 A. 561 (1928). The present statute clearly requires that the court instruct the jury that no unfavorable inferences may be drawn from the defendant's failure to testify.
Flight, when unexplained, tends to prove a consciousness of guilt. State v. Beaulieu, 164 Conn. 620, 632, 325 A.2d 263 (1973); State v. Miller, 154 Conn. 622, 628, 228 A.2d 136 (1967); State v. Ford, 109 Conn. 490, 496, 146 A. 828 (1929). "The flight of the person accused of crime is a circumstance which, when considered together with all the facts of the case, may justify an inference of the accused's guilt.