specially concurring.
I do not think it necessary to deal with the question of whether there was evidence of alibi, and would not do so. If refusal to give an instruction on flight is not error. because it is nothing but a comment on the evidence, State v. McCormick, 28 Or App 821, 561 P2d 665, Sup Ct review allowed (1977), I do not perceive how we can hold otherwise as to an instruction on alibi which merely says to a jury, "Evidence that a defendant was elsewhere at the time the crime was committed was evidence that he didn’t commit it.”