I concur in the judgment.
I do not assent to the doctrine that evidence of flight cannot be considered unless there be a showing that the defendant *Page 575 knew, when he fled, that he was charged with the crime. Immediate flight, in the absence of any accusation — in advance, perhaps, of the possibility of an accusation, formal or informal — may afford very persuasive evidence of a consciousness of guilt. (Wigmore on Evidence, sec. 276.)
With regard to the other qualification referred to in the foregoing opinion, it is no doubt true that a mere departure from the vicinity of the alleged crime would have no logical tendency to prove guilt if the defendant, at the time of taking his departure, did not know that a crime had been committed. It would seem proper, therefore, to qualify the charge, if one is to be given at all, by telling the jury that flight is to be considered only where there is other evidence showing such knowledge on the part of the defendant. But this is almost necessarily implied in an instruction which tells the jury that evidence of flight is received only as "indicative of a guilty mind" and as "tending to prove a consciousness of guilt." It is hardly to be supposed that a jury so instructed will find that a consciousness of guilt has been indicated by any act done by one not shown to have been aware of the commission of the offense. In other words, the giving of the instruction in the form in which it was here given would not ordinarily work substantial prejudice to a defendant.
At any rate a reading of the record in this case has brought me to the opinion that the alleged error has not resulted in a miscarriage of justice, and that this court would not, therefore, in view of the provisions of section 4 1/2 of article VI of the constitution, be justified in ordering a reversal.
Angellotti, J., and Shaw, J., concurred. *Page 576