[31] I respectfully dissent to this decision. As I view the evidence, it is not sufficient to sustain a verdict for the crime of murder; and secondly, considering the facts of this case, the giving of Instruction 18 constitutes reversible error.
[32] At most, defendant should have been charged with the offense of first degree manslaughter, because the required elements for murder are not present. The incident, out of which this charge arose, resulted from a drunken brawl between friends. While the testimony was conflicting, the two consistent facts were: that defendant and the deceased man were friends; and, that the shooting was preceded by a fight between the two men and others present. Premeditation was not shown; nor was the condition of a depraved mind shown to exist, unless intoxication is depravity. Consequently, after reviewing the record, I believe the evidence is not sufficient to sustain the jury's verdict.
[33] Likewise, there was no testimony offered to show that defendant attempted to "flee" to avoid prosecution. Admittedly, defendant went from the scene of the fight to the home of his uncle, where he was arrested about an hour after the shooting; but he did not leave or attempt to leave the vicinity of Okemah. The fact that he requested his friend to dispose of the pistol has absolutely no bearing whatsoever on the question of flight, as encompassed by Instruction 18. Consequently, I believe fundamental reversible error was committed when the instruction on flight was given over defendant's objections. The Attorney General's brief erroneously states, ". . . the State fails to find that defendant raised the objection to Instruction 18 either at trial or in the Motion for New Trial. Therefore, the defendant cannot raise an objection to Instruction 18 for the first time on appeal." At page 1128, of Volume II of the transcript of testimony, the record shows defendant objected to the instruction, and preserved his exceptions.
[34] This Court stated in Jones v. State, 77 Okla. Cr. 285, 141 P.2d 109, 117 (1942), the following:
"The law is well settled that instructions given to a jury must be adapted to the evidence and circumstances of the case on trial. To give instructions, even though they contain a correct statement of abstract legal principles, which are prejudicial will warrant a reversal of a judgment of conviction and constitutes error."
[35] At page 118, of the Jones decision, supra, this Court continued:
"The error of inapplicable instructions rests in the fact that they pertain to points not `pertinent to the issue,' and contain matters of law for the jury's consideration not `necessary for their information,' and therefore, instead of enlightening, tend to confuse and mislead the jury. This is so because such instructions, in effect, either create a false issue or constitute a misstatement of the real issue, thereby distracting the attention of the jury from and befogging the real issue."
[36] I believe Instruction 18 had a befogging effect, and distracted the jury from the real issue. That instruction so distracted the jury from the instructions on murder and manslaughter, as to effectively eliminate the manslaughter instruction from consideration by the jury. Insofar as the evidence was insufficient to show "flight," I believe Instruction 18 constitutes reversible error, under the facts of this case. Therefore, I respectfully dissent. I would reverse and remand this conviction for a new trial. *Page 252