Stewart

(after stating the facts as above).

[1] 1. Considering the assignments in the order in which they are discussed in the brief, the first is that the court committed prejudicial error in its charge to the jury on the subject of the defendant’s flight from the scene of the homicide. The extract from the charge which is complained of is this:

It is said that this is virtually an instruction that as a matter of law the defendant was guilty of the offense charged if he fled from the scene of the crime, and was a palpable invasion of the province of the jury to find the effect of that fact in the light of all the evidence. We are not inclined to regard this language, standing alone, as open to the interpretation thus put upon it, or that it would be so understood by the average mind, but we are quite certain that it cannot be so construed when read, as it must be, with its context. The entire feature of the charge bearing upon the question was this;

It is quite apparent, we think, that by this language the court did no more in effect than tell the jury that defendant’s flight, which he admitted, like the admission of robbery, was a fact tending to show guilt, which they could take…