dissenting.
I believe the majority wrong in deciding that the giving of the instruction on flight did not constitute reversible error.
The challenged instruction, No. 23, is quoted at length in the opinion'of the court and in the interest of brevity will not be repeated herein.
As I view, this instruction denied defendant a fair trial, first, because of its improper form and, secondly, because the evidence did not warrant the giving of any instruction on the subject of flight.
, The majority concedes the correctness of the first proposition, but denies reversal for the error upon the extremely technical basis that defendant’s objection to the instruction was not sufficiently comprehensive to include this specification.
Condemning the form of the instruction, the court states: “Instruction No. 23 is clearly taken from a case in which the identity of the perpetrator was in question, hence that portion of the instruction was inapplicable,” but then goes on to say: “If there was evidence of flight the remainder of the instruction was proper.” However, the opinion does not attempt to specifically segregate the “proper” language from the “inapplicable.” In fact, as will appear from a reading of the instruction, such a feat would approach the impossible. Nor does the court, in its opinion, profess to say how it may be presumed that the jury devised or followed a sound formula for *389the elimination of the legal error in this concededly duplicitous instruction. That this fallacy has attended the thinking of the majority throughout, is made clear by the language of the ultimate conclusion of affirmance, wherein it is said: “Under all these circumstances, and even assuming that there was a valid objection to Instruction No. 23, the material portion of it, and the only portion having any application to the controversy, was clearly proper.”
Concerning the result of giving an inapplicable instruction, “It has been repeatedly held by the appellate courts of this state that it is error to give an instruction, however correct it may be as an abstract proposition of law, unless it bears upon and is connected with the issue in the case and is predicated upon competent evidence submitted to the jury, to which evidence the jury may apply it. Such instructions tend to mislead the minds of the jury from the issue involved.” Fay v. Fort Collins, 40 Colo. 262, 90 Pac. 512. The same rule attains where the charge contains two conflicting propositions of law. Clare v. People, 9 Colo. 122, 125, 10 Pac. 799.
Considering that a sentence of life imprisonment was imposed on defendant as the result of a verdict of a jury, at least erroneously instructed in part, it would seem fitting that our court under the compassionate view adopted in Reppin v. People, 95 Colo. 192, 34 P. (2d) 71, and followed in McRae v. People, 101 Colo. 155, 71 P. (2d) 1042; Hoppal v. People, 102 Colo, 524, 81 P. (2d) 381; Paine v. People, 106 Colo. 258, 103 P. (2d) 686, and Leech v. People, 112 Colo. 120, 146 P. (2d) 346, wherein errors not objected to below were noticed, should order a new trial herein on this point alone.
The shooting occurred at approximately 2:15 a.m. in the street in front of 1615 East 22nd avenue where deceased resided. Immediately after the single shot was fired, Hicks, saying only, “Let me out of there,” precipitately left his car and ran away in the darkness. None of the other three occupants of decedent’s car, *390including his widow, knew at the time that a bullet had struck deceased and so testified. Evidence in the record discloses that immediately after the discharge of the gun, defendant, while all of the occupants of decedent’s car •still were therein, asked “If anybody was hit?,” but received no answer. Defendant testified that while still standing by decedent’s car, he further said, without contradiction being offered, “I don’t think anyone was hit.” Defendant then returned to his car and drove to his residence at 510 29th street. Decedent’s widow, still believing her husband unhurt, hurried to their home to unlock the door so that he might enter. When he did not appear, and before making the search which ended in the discovery of his body in an alley, she went to a nearby residence to ascertain whether decedent had gone in there. The officers were called at about 2:30 a.m., and a police broadcast put on the air at 2:35 a.m. The officers who had been assigned to investigate the shooting returned to police headquarters at 3:45 a.m., but before that time defendant had reported there, identified himself as having been implicated in the affair, and upon being advised, in response to his inquiry, that Hicks had been shot, submitted to arrest. It is my belief that the foregoing undisputed testimony discloses certain discrepancies in the time factors as generalized in the court opinion and demonstrates that, the inference of the majority that at the time of his departure defendant knew that Hicks had been shot is in opposition to the testimony of every eye witness.
Upon the arrival of defendant and his wife at their home following the shooting, defendant’s fourteen year old step-daughter was aroused from sleep, and after she had dressed, the three drove to the home of Richard Albertis, at 1219 28th street, in whose custody the child was left. This move was made at the insistence of Mrs. Robinson and seem's to have been induced by repeated remarks of deceased in the argument preceding the shooting expressing his amorous desires toward the girl. *391Defendant paused at Albertis’ for a conversation with the latter, the duration of which is not stated in units of time, but which, from the tenor as recited in the record, must have consumed a considerable period. Thereafter defendant proceeded to police headquarters. Before going in he and his wife sat in their car and talked for at least fifteen minutes. The evidence does not show the route taken, but it is undisputed that not more than “an hour or an hour and a half” elapsed between the moment the shot was fired and the time of the voluntary appearance of defendant at police headquarters. During this interval there was no pursuit of anyone by the police nor had they so much as called at defendant’s residence — well known to every eye witness to the shooting — in an effort to arrest him. Further, I am unable to find in the record any evidence supporting the statement of the majority opinion that, “The friend with whom the daughter was left and his own wife both advised him against flight,” or that the matter of projected flight was so much as mentioned or discussed in their conversations.
The question here confronting us, the second in the order adopted by the majority opinion, is whether the foregoing evidence was sufficient to warrant the giving of an instruction on flight. If it was not, reversible error occurred. Such is made certain by our opinion in orin v. People, 68 Colo. 1, 188 Pac. 1114, wherein it is stated: “In the absence of any testimony showing any attempt, effort or purpose on the part of the defendant to flee, this instruction ¡on flight] was highly prejudicial and sufficient in itself to cause a reversal of the case” See, also, State v. Goodwin (Mo.), 217 S. W. 264, 53 Am. Jur., p. 537, §710; 23 C. J. S., p. 779, §1220, and particularly note (1) first column, page 780 of the latter work. There are no exceptions to this rule. A breach thereof is recognized universally as denying a defendant the fair trial guaranteed by law.
Viewed in the light of the authorities, I am satisfied *392the evidence of defendant’s conduct following the shooting, which I believe is fairly stated above, furnished no sufficient basis for the -giving of the questioned instruction.
In the development of the law, the importance attached to flight as evidence of guilt has gradually diminished. Under the old common law a man who fled to avoid being tried for felony forfeited all his goods even though he was acquitted; and the jury was always charged to inquire not only whether the prisoner was guilty of the offense, but also whether he fled because of it, and, if so, what property he had. See, Hickory v. United States, 160 U. S. 408, 16 Sup. Ct. 327, 40 L. Ed. 474. The latter practice finally was abolished by statute in England (Stat. 7 & 8, Geo. IV. c. 28, §5).
The modern tendency has been to regard flight as evidence of guilt only if it appears to be a deliberate attempt to avoid arrest or trial. See, 25 A. L. R., pp. 886, 887. No such intention by defendant properly may be inferred from the evidence herein. In fact, defendant, instead of seeking to avoid arrest accelerated it by reporting at the police station. This intent was not diluted by the circumstance, to which Mrs. Robinson testified, that in the few minutes elapsing between the departure from Albertis’ and arrival at the police station she and defendant drove “around and around” the streets of Denver. The primary définition of “flee”- as given by Webster is, “to run away from.” How then can it be held that proceeding to police headquarters, even by a circuitous route, was a flight from the officers of the law? It has been held that the mere fact that defendant fled from the place where a homicide was committed, immediately thereafter, and went to his home, not more than one-half mile distant, does not authorize the giving of an instruction on flight. State v. Hopper, 142 Mo. 478, 44 S. W. 272. See, also, People v. Goodwin, 202 Cal. 527, 261 Pac. 1009, 1014.
In Iowa it has been held on numerous occasions (See, *393State v. Seymour, 94 Ia. 699, 63 N. W. 661, as typical), that the giving of an instruction on flight is proper only where: (1) The defendant knows that he was accused or suspected of crime, and, (2) that he fled to avoid arrest therefor.
It is to be recalled that herein there was no testimony whatosever that defendant knew at the time he. left the scene of the shooting that Hicks had been injured in any degree as a result of the shot. In the light of this evidence how can it properly be held with reason that defendant’s departure from the scene resulted from an impulsive reaction to- a consciousness of guilt of the crime for which he subsequently was tried? In this connection it is of interest to note that in People v. Jones, 160 Cal. 358, 117 Pac. 176, 181, the court stated that, in order to be indicative of a guilty consciousness, a flight must be made by one who knows a crime has been committed and that he is charged therewith. See, also, to the same effect, People v. Sainz, 162 Cal. 242, 121 Pac. 922, and People v. Lem Deo, 132 Cal. 199, 64 Pac. 265. Under the evidence, the only inquiry from the police which might have been anticipated by defendant at the time he left the scene would have related to the discharge of a firearm. If such apprehension was a factor inducing' his departure, the circumstance is without pertinency herein since, “Flight because of one crime, * * * is not admissible as evidence of guilt of another crime.” 20 Am. Jur., p. 273, §293.
The foregoing I believe is indicative .of the state of the law on the subject. Notwithstanding, the majority has pronounced that the giving of the undefined “material portion” of Instruction No. • 23 “was clearly ■proper.” Not a single case supporting such conclusion is cited in the court opinion. In explanation of this unusual course, which seems inadequate in the light of the precedents hereinabove mentioned, the court in the majority opinion states, “Of the many authorities cited by counsel we refer to none. Those applicable are not con*394trary to the foregoing. Others are clearly inapplicable because of divergent facts. The general principles relied upon herein are well recognized and undisputed. Any attempt to diagnose the adjudicated cases and reconcile and apply them would be but a waste of time and of no assistance to the profession. Under the undisputed evidence this defendant was clearly guilty of a first degree murder.”
Unmistakably, I think, the real basis of affirmance is expressed in the last sentence above. Such is further confirmed by the circumstance that the reasoning of the court opinion seems to be grounded preponderantly on the marshalling of the testimony in a hypothetical demonstration of the ultimate guilt of the defendant rather than in passing it in critical review to determine whether the transcript contained sufficient evidence of flight to justify the. giving of Instruction No. 23. By this process, instead of being determined appropriately by the criteria of the adjudicated requirements for a fair trial, the reversible effect to be given a patent error is made to rest upon the view of the appellate court on the question of the guilt of the accused.
This procedure is not warranted by the law. Such is made graphically clear by the language of the Supreme •Court of California in its opinion in the recent case of People v. Sarazzawski, 27 Cal. (2d) 7, 161 P. (2d) 934, wherein it is said: “There is no question that the evidence amply supports the verdict and judgment but, regrettably, we find in the record several incidents which should not have occurred in a fair and orderly trial. At least two of such incidents are matters of such grave moment as to amount to substantial departures from the established elements of a fair trial, to which every person charged with crime, no matter how rich or poor, virtuous or debased, is entitled. When a defendant has been denied any essential element of a fair trial or due process, even the broad saving provisions of section 4% of article VI of our state Constitution cannot remedy *395the vice and the judgment cannot stand. People v. Mahoney, 201 Cal. 618, 627, 258 P. 607; People v. Adams, 76 Cal. App. 178, 186-187, 244 P. 106; People v. Gilliland, 39 Cal. App. 2d 250, 264, 103 P. 2d 179; People v. Duvernay, 43 Cal. App. 2d 823, 829, 111 P. 2d 659. That section was not designed to ‘abrogate the guaranties accorded persons accused of crime by other parts of the same Constitution or to overthrow all statutory rules of procedure and evidence in criminal cases. When we speak of administering “justice” in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.’ People v. O’Bryan, 165 Cal. 55, 65, 130 P. 1042, 1056, opinion by Mr. Justice Sloss; People v. Wilson, 23 Cal. App. 513, 524, 138 P. 971.”
One of the incidents referred to in such opinion was the giving of. an erroneous instruction; the other had to do with the denial of a continuance to permit oral argument by defendants’ counsel on the'motion for a new trial.
Beyond those in that case, the circumstances here seem to me to magnify the prejudice to the defendant arising from the giving of the instruction. Defendant before and at the trial admitted that the deceased came to his death as the result of a gun shot wound inflicted by a pistol held in defendant’s hand. Admittedly the shooting was preceded by a heated controversy. There were a number of eyewitnesses to the fact. Thus, the primary question for the jury was whether the conceded homicide was unlawful or justifiable or excusable. The mental states of the participants were matters of concern thereto. This being so, the improper calling of the attention of the jury to defendant’s departure from the scene of the shooting, with the admonition that such *396was a circumstance they might consider in connection with the other evidence in determining the guilt or innocence of defendant, including inferentially their return of the degree of the crime, if defendant was found guilty, potentially could not have been other than prejudicial to his cause. See, Orin v. People, supra. All of the testimony in examination was admissible as part of the res gestae and was so considerable by the jury. The vice, and prejudice to the defendant, arose from the mistake of the court in singling out and emphasizing the fact of his departure, by an admittedly inaccurate special instruction and in so disturbing the delicate poise of the scales of justice necessarily incident to a fair trial.
Pertinently to this point, it has been held that flight by the defendant following a homicide does not prove or tend to prove, that defendant acted with deliberation and premeditation and that, as a result, an instruction on flight is erroneous where a defendant’s participation was not in issue. State v. Foster, 130 N. C. 666, 41 S. E. 284, 89 Am. St. Rep. 876.
In this view our function is not to resolve the ultimate question of defendant’s guilt or innocence and decide procedural points relatively on the basis of our personal views on that question, but to determine whether defendant had a trial in the form guaranteed by law. For the reasons given I am satisfied he did not, and so believe the judgment should be reversed and a new trial ordered.
I am authorized to state that Mr. Justice Hilliard and Mr. Justice Alter concur in the views expressed herein.