McClain, J.
i. indictment; aggravating circumstances, -The indictment charged that defendants made an assault upon one Charles Billington and put him in bodily fear and danger of his life, and that said defendants, being then and there armed with a revol- ° . 6 yer and a knife, the same being dangerous weapons, feloniously and unlawfully did rob, steal, and carry away from the person of said Billington, against his will, certain property described. The court charged the jury that if it found the defendants, or cither of them, was armed with [119]*119a revolver and knife, or either of snob weapons, with intent, if resisted, to kill or maim the said Charles Billington, or if the defendants, or either of them, being so armed, struck or wounded the said Charles Billington, then the defendants, or either of them, so found guilty, might be punished as specified in Code, section 4754, which provides that “if sued offender at the time of such robbery is armed with a dangerous weapon with intent if resisted, to kill or main the person robbed, or if being so armed, he wound or strike the person robbed,” he may be punished by a term of imprisonment in the penitentiary not exceeding twenty years nor less than ten years.
This instruction is objected to on the ground that the indictment does not charge the aggravated degree of the offense described in the section of the Code above referred to, and it is contended that it was error to submit to the j’ury the question whether defendants were armed with intent, etc., or did, being so armed, wound or strike the person robbed. But it is to be noticed that the statute does not describe different offenses in the nature of robbery. In Code, section 4753, the crime is fully described, without reference to the circumstances of being armed, etc., while the two following sections prescribe punishments, depending on the presence or absence of the aggravating circumstances under which the crime is shown to have been committed. Therefore it was not necessary in the indictment to charge the circumstances of aggravation, which affect only the measure of punishment that may be inflicted. This conclusion has been reached in Massachusetts, where the statutory provisions are very similar to those found in our Code. Commonwealth v. Mowry, 11 Allen, 20; Commonwealth v. Cody, 165 Mass. 133 (42 N. E. Rep. 575).
Although this court may not have expressly passed ou the question, yet in State v. Brewer, 53 Iowa, 735, it approved an indictment similar to the one now before us, while in State v. Callihan, 96 Iowa, 304, and in State v. Osborne, 96 Iowa, 281, it treated an indictment charging the essen[120]*120tial facts of robbery, and also an assault with intent to kill, as not describing more than one offense, and deemed the pe culiarities of the assault as unnecessary and surplusage. We think it not required that an indictment which states the essential facts of the crime of robbery shall further state the circumstances of aggravation, in order to warrant the imposition of the penalty provided for in Code, section 4754.
2. flight: denceof guilt: mstmction. • In one paragraph of the charge, the jury was instructed as follows: “It is claimed by the state that the defendants Decker and Poe at once fled, and endeavored to escape arrest by such flight. If you find said defendants at once alter the alleged offense fled to Missouri, ° w 7 an¿ endeavored to avoid arrest and prosecution by sucli flight, such fact would be presumptive evidence o± guilt; and if, such fact is unexplained, tbe jury would be justified in considering such flight as evidence of guilt.’’ The objection urged to this instruction is that the jury may have reasonably understood it as authorizing them to give undue weight to the fact of flight, and to convict on proof ot that fact alone.
The fact that defendant fled from the vicinity where the crime was committed, having knowledge that he was likely to be arrested for tbe crime, or charged with its commission, or suspected of guilt in connection therewith, may be shown as a circumstance tending to indicate guilt, and may be considered by the jury with other circumstances tending to connect the defendant with the commission of the crime, to authorize the inference of tbe guilt of defendant, the corpus delicti being proven. To this proposition there is general assent among the authorities, aud it is well settled that evidence of flight is admissible. 1 Bishop’s New Criminal Procedure, section 1250; Abbott’s Trial Brief, 458. The admissibility of such evidence depends upon the assumption — which is in accordance with usual human experience — that a guilty person will, and an innocent person will not, attempt to avoid an investigation of a charge of crime; and yet it is well [121]*121recognized as a fact that guilty persons do not universally attempt to escape; for, recognizing tbe danger oí such attempt, or relying on the inability of the prosecution to connect them with the crime charged, they may well think it to be to their advantage to defy suspicions or accusations; while, on the other hand, innocent persons, througU mere timidity, or by reason of a fear that they may not be able to meet apparent evidence of guilt, may seek to elude arrest for the purpose of escaping or postponing investigation until the excitement has subsided, or facts establishing their innocence may have been developed. It is therefore usual and proper, not only to instruct the jury that they may consider evidence of flight with other circumstances tending to show defendant’s guilt, but also to advise them as to the weight which should be given to such evidence. Commonwealth v. Berchine, 168 Pa. 603 (32 Atl. Rep. 109); Elmore v. State, 98 Ala. 12 (13 South. Rep. 427); Sewell v. State, 76 Ga. 836.
In State v. Thomas, 58 Kan. Sup. 805 (51 Pac. Rep. 228), the court approved an instruction that flight of defendant is “a circumstance to be considered, in connection with all the other evidence, to aid you in determining the question of his guilt or innocence.” The weight of such circumstances is frequently greatly modified by the conditions shown to have existed as bearing upon the conduct of the defendant; and under some circumstances,, such as that the defendant was of immature years or thought himself to be In danger of violence, such evidence is of very little probative force. Mathews v. State, 19 Neb. 330 (27 N. W. Rep. 234); Ryan v. People, 79 N. Y. 593.
In the case last cited the court says: “The evidence that the defendants made an effort to keep out of the way of the officer was very slight, if any, indication of guilt. There are so many reasons for such conduct, consistent with innocence, that it scarcely comes up to tbe standard of evidence tending to establish guilt; but this and similar evidence has been al[122]*122lowed upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances.” And in Sheffield v. State, 43 To 378, this language is used: “It was a maxim of the ancient common law that flight from justice was equivalent to guilt. This effect is not now given to flight in the modern law of evidence. Numerous examples are to be found in which some other motive can be assigned than that of guilt, and which form exceptions to the general rule, and require consideration by the jury in coming to a conclusion as to the real motive for flight.” It is clear-that the circumstance of flight alone will not justify conviction of the defendant, in the absence of other evidence tending to connect him with the commission of the crime, although the corpus delicti may have been sufficiently shown. Elmore v. State, 98 Ala. 12 (13 South. Rep. 427); Sylvester v. State, 71 Ala. 17.
Indeed, it has been held that the court should not say to the jury, in such cases, that flight is evidence of guilt, but, rather, that it is only evidence tending, to prove guilt, and accordingly it is said that the court should not instruct the jury that if flight is proved it must be satisfactorily explained, consistently with the innocence of the defendant. Fox v. People, 95 Ill. 71.
The last sentence of the instruction above quoted is open to criticism, therefore, in that it might have been reasonably interpreted by. the jury as authorizing them to convict the defendant of the crime charged, without other evidence ot defendant’s guilt than that he had, soon after the commission of the crime, and with knowledge that he was suspected thereof, fled from the vicinity where the crime was committed. The instruction does incorporate the thought that such circumstance might be explained, but it leaves the jury to infer that, if unexplained, it is sufficient evidence to warrant them in finding that defendant was guilty of the crime.' Even if unexplained, such conduct is not, as already pointed out, inconsistent with innocence, but merely a eircumstam*© [123]*123from which, with other circumstances, the inference of guilt may be drawn. This sentence cannot, perhaps, be said to be in itself erroneous as stating*a proposition of law; but as the instruction, as'quoted, embodies all that was said to the jury on the subject, and in view of the equivocal nature of the evidence relating to the flight, as it will be hereafter more fully referred to, we think that it was calculated to mislead the jury as to the effect which might be given to such evidence.
But we think that the second sentence of the instruction, declaring that flight, if to avoid arrest and prosecution, would be presumptive evidence of guilt, was erroneous and prejudicial. It is sometimes said, for the purpose of explaining why evidence of flight is admissible at all, and not for the purpose of determining what weight the jury should give to such evidence, that a presumption of guilt arises therefrom. Dr. Wharton, in an article on Presumptions in Criminal Cases (1 Criminal Law Magazine, 10), uses this language: “All evidence, therefore, we conclude, consists of reason and fact co-operating as co-ordinate factors. The facts áre presented to us either by inspection, or by what we call judicial notice, or by our knowledge of everyday life, such as is embraced by the term ‘notoriety,’ or by the descriptive narrative of witnesses. From these facts we draw certain conclusions. The mode by which we draw them is induction, and the processes we term ‘presumption.’ In other words, a presumption is an inference of a fact from a fact. Of this we may take the following illustration: A man ac cused of crime hides himself and then absconds. From this fact of absconding we infer the fact of guilt. This is a presumption of fact, or an argument pf a fact from a fact.” But in his work on Criminal Evidence (section 750), this author explains the whole matter in language so pertinent to all the phases of this case that we venture to quote him at length: “When a suspected person attempts to escape or evade a threatened prosecution, it may be argued that he does [124]*124so from a consciousness of guilt; and though this inference is by no means strong enough by itself to warrant a conviction, yet it may become one of a series of circumstances from which guilt may be inferred. Hence it is admissible for the prosecution to show that the prisoner advised an agcomplice to break jail and escape, or that he offered to bribe one of his guards, or that he killed an officer of justice when making .such attempt, or that he attempted to bribe or intimidate witnesses. So with flight, to which no proper motive can be assigned, and with acts of disguise, concealment of persou, family, or goods, and similar ex post facto indications of a desire to • evade prosecution. But it must be remembered that, while these acts are indicative of fear, they may spring from causes very different from that of conscious guilt. ‘Many men arc naturally of weak nerve", and, under certain circumstances, the most innocent person may deem a trial too great a risk to encounter. He may be aware that a number of suspicious, though inconclusive facts, will be adduced in evidence against him; he may feel his inability to procure legal advice to conduct his defense, or to bring witnesses from a distance to establish it; he may be assured that powerful of wealthy individuals have resolved on his ruin, or that witnesses have been suborned to bear false testimony against him; added to all this, more or less vexation must necessarily be experienced by all who are made the subject of criminal charges, which vexation it may have been the object of the party to elude by concealment, with the intention of surrendering himself into the hands of justice when the time for •trial should arrive.’ Best’s Evidence (5th Ed.) 578. The question, it cannot be too often repeated, is simply one of inductive, probable reasoning from certain established facts. All the courts can do, when such inferences are invoked, Is to say that escape, disguise, and similar acts afford, in connection Avith other proof, the basis from which guilt may be inferred; but this should be qualified by a general statement of the countervailing considerations incidental to a compre[125]*125liensive view of tbe question. To this effect is the charge of Abbott, J., in Donnall’s Case, where he told the jury, that 'a person, however conscious of innocence, might not have the courage to stand a trial; but might, although innocent, think it necessary to consult his safety by flight.’ So it is proper to keep in mind, as we have seen, the character of the tribunal before whom,- and the mode of criminal procedure in the country where, the trial is to take place. Hence is it that conduct exhibiting indications of guilt should not be received by the court, unless there be satisfactory evidence that a crime has been committed. And in all cases the circumstances explaining or excusing flight are to be taken into consideration.”
In the same sense Best, in his work on Evidence, refers to the effect of such evidence (Chamberlaine’§ Ed. 1S93): “The evasion of justice seems now nearly, if not altogether, reduced to its true place in the administration of criminal law; namely, that of a circumstance, a fact which it is always of importance to take into consideration, and which, combined with others, may supply the most satisfactory proof of guilt, although, like any other piece of presumptive evidence, it is equally absurd and dangerous to invest with infallibility.”
Judge Thompson, in his work on Trials (volume II, section 2543), explains the matter thus; “It is often inaccurately said that the flight of the accused creates a presumption of his guilt, and this presumption is sometimes inadvertently dealt with as though it were a presumption of law. But it belongs to that class of presumptions which are generally classified as 'presumptions of fact.’ If it were a presumption of law, the jury would be bound to draw it in every case of flight, and the court might so instruct them; whereas it is merely a circumstance tending to increase the probability of the defendant being the guilty person, which, on sound principle, is to be weighed by the jury like any other evidentiary circumstance. In cases where the evidence renders, it [126]*126proper, the judge is at liberty to give the jury advice touching the nature of this presumption. The following, approved in a recent case, will, with some correction of phraseology, be a good model: ‘The flight of a person immediately after the commission of a crime, or after a crime is committed with which he is charged, is a circumstance in establishing his guilt, not sufficient of itself to establish his guilt, but a circumstance which the jury may consider in determining the probabilities for or against him — the probability of his guilt or innocence. The weight to which that circumstance is entitled is a matter for the jury to determine, in ■connection with all the Pacts called out in the case.’ McClain v. State, 18 Neb. 154, 158 (24 N. W. Rep. 720). The following, from another recent case, is more concise, and perhaps belter: .‘Evidence has been introduced as to an attempted escape from jail, by the defendant, while in the ■custody of the sheriff of this county on this charge. If you find from the evidence that defendant did thus attempt to escape from custody, this is a circumstance to be considered by you, in connection with all the other evidence, to aid you in determining the question of his guilt or innocence.- Approved in Anderson v. State, 104 Ind. 467, 472 (4 N. E. Rep. 63, 5 N. E. Rep. 711).” lie then refers to the peculiar form of instruction which has been approved in Missouri, and to which we will hereafter revert. In Murrell v. State, 46 Ala. 89 (7 Am. Rep. 592) the court, reviewing the action of the trial court in admitting evidence of escape pending trial, speaks of flight as one of the most common grounds for a presumption of guilt.
But in respect to all these" references to evidence of flight as raising a presumption of guilt, it is to be observed that it is one thing to say, in giving a legal reason for the admissibility of evidence of flight, that guilt may be presumed therefrom, and quite another thing to tell the jury that a presumption of guilt arises from such evidence. To prevent such an instruction being misleading, it would be necessary to go into [127]*127refined legal distinctions as to presumptions of fact, presumptions of law, and mixed presumptions of fact and law, ■which are intelligible, if at all, only to a mind trained in legal conceptions and the use of technical language.
The error involved in directing the jury that evidence of flight gives rise to a presumption of guilt is clearly pointed out in the cases on the subject. In People v. Wong Ah Ngow, 54 Cal. 151 (35 Am. Rep. 69), such an instruction is condemned. In Hickory v. United States, 160 U. S. 408 (16 Sup. Ct. Rep. 327, 40 L. Ed. 474), the subject is fully considered, and an instruction is condemned which is characterized as “tantamount to saying to the jury that flight created a legal presumption of guilt so strong and so conclusive that it was the duty of the jury to act on it as an axiomatic truth,” and the court continues as follows: “In this charge, also, it is true, the charge thus given was apparently afterwards qualified by the statement that the jury had a right to take the fact of flight into consideration, but these words did not correct the illegal charge already given. Indeed, taking the instruction that flight created a legal presumption of guilt, with the qualifying words subsequently used, they were both equivalent to saying to the jury that they were, in considering the facts, to give them the weight which, as a matter of law, the court declared they were entitled to have; that is, as creating a legal presumption so well settled as to amount, virtually, to a conclusive proof of guilt.” In Alberty v. United States, 162 U. S. 499 (16 Sup. Ct. Rep. 864, 40 L. Ed. 1051), the court approves what was said in the case from which we have just quoted, and, with reference to a similar charge, says: “'The criticism, to be made on this charge is that it lays too much stress upon the fact of flight, and allows the jury to infer that this fact alone is sufficient to create a presumption of guilt. It certainly would not be contended, as a universal rule, that the fact that a person who chances to be present on the scene of a murder shortly thereafter left the city would, in the ab[128]*128sonce of other testimony, be sufficient in itself to justify his conviction of the murder.”
The only cases which we have been able to find sanctioning instructions to the jury that flight is presumptive evidence of guilt are those in Missouri, as to Avliich Judge Thompson says (2 Thompson on Trials, section 2548, supra): “Often in Missouri, where the English idea concerning presumptions in criminal cases generally prevails, the following form of instruction upon this subject is used— ending, it is perceived, in submitting the fact as a circumstance to the consideration of the jury-^-'The court instructs the jury that flight raises the presumption of guilt, and if you believe from the CAddence that the defendant, after having shot and killed Minnick, as charged in the indictment, fled the country and tried to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence.’ ” Such an instruction is sanctioned by the following among many cases in that state: State v. Walker, 98 Mo., 95 (9 S. W. Rep. 646); State v. Ma Foo, 110 Mo., 7 (19 S. W. Rep. 222, 38 Am. St. Rep. 414); State v. Hunt, 141 Mo., 626-633 (43 S. W. Rep. 389). The rule in Missouri seems to be peculiar, and we are not inclined to follow it.
On principal and authority, the instruction as to the presumption to. be drawn from proof of flight is erroneous, and should not be sustained, unless it is so far sanctioned in the cases in our OAvn state that Ave are precluded from folloAving the dictates of reason as illustrated by the weight of authority. In State v. Rodman, 62 Iowa, 456, and State v. Fitzgerald, 63 Iowa, 268, we approved instructions to the effect that evidence of flight, or attempt to escape, should be considered as tending to establish guilt. In State v. Schaffer, 70 Iowa, 371, and State v. Stevens, 67 Iowa, 557, Ave held that evidence of flight Avas properly introduced, and that the the fact of flight Avas material. In State v. Seymour, 94 Iowa, 699, an instruction Avas approved Avhich told the jury [129]*129that if tliey found from tbe evidence that defendant, upon being informed that be was suspected of or charged with crime, “fled to avoid arrest, and remained away, going under an assumed name, such fact is a circumstance which prima facie is indicative of guilt.” In State v. James, 45 Iowa, 412, a similar instruction is quoted, but without discussion of its correctness as a proposition of law, the only question considered being as to whether there was sufficient evidence of flight to warrant the submission of the question to the jury. In State v. Arthur, 23 Iowa, 430, an instruction is condemned which told the jury that a mere attempt to escape raised in law a strong presumption of guilt. In the last cited case the court says: “That an unexplained attempt to escape is a circumstance against a party accused of crime is undoubtedly true, and as such it may be proven to and considered by the jury. But at most it only raises a presumption — a presumption ordinarily inconclusive rather than strong, and one which is variable in force, dependent upon the circumstances surrounding the prisoner. * * * The true course is to allow the fact of evading or attempting to evade justice to be proved to the jury as a circumstance which prima facie is indicative of guilt.” But these authorities are far from sufficient to justify the instruction given in this ease. To say that flight is a circumstance prima facie indicative of guilt is a very different thing than saying that “'such fact would be presumptive evidence of guilt.”
Although the term “presumptive evidence of guilt,” as applied to a certain state of facts, may, perhaps, sometimes indicate no more than that the facts referred to may be considered by the jury as evidence from which guilt may be inferred as a matter of fact, and not as a matter of law, yet it is always unwise, in giving the jury instructions as to tbe evidence, to say that from any particular fact a presumption of guilt arises. The question of guilt is one to be determined by the jury on all the facts. In State v. Brady, 121 Iowa, [130]*130561, the court, referring to an instruction as to evidence of recent possession in a prosecution for burglary, says: “The law does not attach a 'presumption of guilt’ to any given circumstances, nor does it require the accused to 'overcome the presumption thereby raised’ in order to be entitled to an acquittal. What the law does say is that the fact of possession is evidence of guilt upon which a conviction may properly be returned, unless the other facts or circumstances developed be such that, notwithstanding the recent possession, the jury still entertains a reasonable doubt of the defendant’s participation in the crime. It is in this sense the words 'presumption’ and ‘prima facia evidence’ must be understood when employed in this connection.”' It is evident that the presumption arising from the recent unexplained possession of stolen property, that the person thus found in possession is guilty of larceny or burglary, as the case may be, is entitled to greater-weight than the presumption of guilt from flight.
The prejudicial and misleading character of the instruction given in this case is manifest when it is considered in connection with the evidence which we find in the record. So far. as appears, the only evidence of flight was that one of the defendants, who was still in the neighborhood where the crime was committed, two days after the commission of the crime, said that he was charged with having killed and robbed a man, and that “they were after him for it,” and he would get away if he could; that some time afterwards- — how long does not appear — he was in a town in an adjoining county, and that two months afterwards all the defendants were under arrest for this crime in Missouri. Defendants were roving characters, going from place to place and getting work of a temporary nature, and there was no reason disclosed why it should be expected that they would remain in the place where they were boarding, near the scene of the robbery, as they had no permanent employment at that place. Now, for the court to say that if it was proven that these [131]*131two defendants, soon after tbe commission of this crime, left the place where they had been staying as boarders, and two months afterwards were found in Missouri, they might be convicted of the crime charged, without any further evidence whatever of their connection with the offense, was manifestly erroneous; and this is exactly what the jury were told. As a matter of fact, there was other evidence of their guilt, although the testimony of the witnesses was conflicting; but the jury would have been warranted under this instruction in finding them guilty on the evidence of flight alone, ambigous as it was, although the jury did not believe that the other evidence even tended to connect them with the crime.
For error in giving the instruction above referred to, a new trial must be ordered. — -Reversed.