(dissenting)-
I regret that I cannot agree with the majority of the Court for the following reasons.
I disagree with the position the majority has taken as to the instruction on flight. Flight is evidence of guilt and in connection with othei proof may be the basis from which guilt may be inferred. It is the absenting of oneself from the community of the crime out of the fear of or to avoid arrest. It is admitted under the exception to the hearsay rule that allows admissions against interest of a party. See Udall, Evidence § 178 (1960). The relevance of such evidence is based on the proposition that from the fact that the accused fled the scene of a crime, an inference arises that he is. conscious of his own guilt. 1 Wharton, Criminal Evidence § 205 (12th Ed. 1955) (citing cases).
I strongly oppose the majority’s liberalization of the definition of flight. Any number of reasons having nothing to do with guilt could be given for the departure of the defendant. Therefore, it is essential that there be evidence suggesting a consciousness of guilt on his part before the jury is. instructed that his departure from the scene may be considered by them as a circumstance indicating his guilt. See People v. Brecker,. 20 Cal.App. 205, 127 P. 666 (1912).
The courts universally recognize that, before instructing the jury on flight, there must be evidence that the accused not only left the scene of the crime, but that he also, concealed himself, or made some effort to-do so. Commonwealth v. Logan, 198 Pa. Super. 635, 184 A.2d 321 (1962). The Supreme Court of Illinois defined flight in the following terms:
*413“ ' * * * the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings. The term signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest. Such "onsciousness and purpose is that which gives to the act of leaving its real incriminating character.’ ” People v. Herbert, 361 Ill. 64, 73-74, 196 N.E. 821, 825 (1935). (Emphasis added).
The Court in Logan held that the evidence did not warrant an instruction on flight, and that the giving of one was so prejudicial as to constitute reversible error.
In the instant case, the instruction was likewise prejudicial. Although the defendant himself did not testify, witnesses said that they simply walked away from the area and returned to town. The next day they were seen about town. There is no evidence that they made any effort to evade arrest; consequently, the facts did not support an instruction on flight. See People v. Rischo, 262 Ill. 596, 105 N.E. 8 (1914).
I also dissent from approval by the majority of the testimony of statements made by the prosecutrix concerning the incident, admitted in evidence as part of the res gestae. My reason for dissent here are fully set forth in the dissent in State v. Finley, 85 Ariz. 327, 338 P.2d 790 (1959).
I am also of the opinion that Art. 6, Sec. 27 of the Arizona Constitution was never intended to allow this Court to sweep difficult legal problems under the rug.