¶1(dissenting).
¶2I am unable to agree with the disposition’ accorded this case by the majority opinion: -remanding the case for another trial.
¶3While I agree that it would have been: better to have stricken the “aka Robert Clayton Mahone” from the information filed when this matter was called to the-court’s attention, and that it would have-been better to have eliminated from, the-court’s instructions the “flight” instruction-,. I can see no abuse of discretion on- the-court’s part nor error of sufficient import to require reversal.
¶4At the time of his arraignment, the- defendant acknowledged that the name under which he was charged was his “true named’ That he is not a stranger to this alias: is: indicated by the record of the prior felony *76conviction to which he admitted, which is in exactly the same name as used in the instant information.
¶5The Rules of Procedure to which the trial court was attempting to comply are at least ambivalent on the question of whether the alias should have been stricken. Rule 161, Rules of Criminal Procedure, under which the indictment was conducted, provides that, if the defendant alleges another name is his “true name,” other than the one under which he is charged, “ … the subsequent proceedings may be had against him by that name, referring also to the name by which he was first charged.” (Emphasis added.)
¶6■ Assuming that it was error not to strike this other name, I believe this defendant was accorded a fair trial, despite any error in this regard. Our state constitution contains the mandate: “No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.” Ariz. Const, art. 6, § 27. This jury was given a number of charges by the court which must have impressed it with its solemn duty not to convict on any other basis than the evidence produced in court. Among such instructions was the following:
“As you were told earlier, an Information is but a formal method of accusing the defendants of a crime. It is not evidence of any kind against the accused and does not create any presumption or. raise any inference of guilt. The law presumes a defendant to be innocent of crime, thus a defendant, although accused, begins the trial with a clean slate and with no evidence against him. The law permits nothing but legal evidence presented before you, the jury, to be considered in support of any charge against the accused, so the presumption of innocence alone is enough to acquit a defendant unless, you the jurors, are satisfied beyond a reasonable doubt after hearing the evidence and from all of the evidence in the case.
He $ $ ‡ ‡
“Keep constantly in mind it would be a violation of your sworn duty to base a verdict in this case upon anything but the evidence in the case. …”
¶7Years of experience on the trial bench lead me to believe that jurors are not apt to convict on suspicion or because a person might happen to have a second name under which he is also known.
¶8These observations as to the seriousness of the violation in regard to the name under which the defendant was charged are equally pertinent to the flaw found by the majority opinion in the giving of an instruction on inconsistent statements. The instruction, in my view, does not assume that any such inconsistent statements were made by anyone. That the instruction had any appreciable effect on the outcome of this case is an unmerited assumption.
¶9As to the flight instruction, the latest view of our Supreme Court indicates that such an instruction is proper when there is evidence of “flight” as opposed to “mere departure.” State v. Rodgers, 103 Ariz. 393, 442 P.2d 840 (June 19, 1968). In Rodgers, our Supreme Court adopts with approval a definition of flight as given in People v. Herbert, 361 Ill. 64, 73-74, 196 N.E. 821, 825 (1935):
“Flight, in criminal law, is defined as ‘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. (Emphasis in original.) Such consciousness and purpose is that which gives to the act of leaving its real incriminating character.’ ”
¶10It is certainly within the possible inferences of this evidence that this defendant and his codefendant did more than merely depart from this scene. The giving of an instruction should be approved if, viewing the evidence favorably to support the in*77struction, it is justified. Reichardt v. Albert, 89 Ariz. 322, 361 P.2d 934 (1961). Under at least one theory of the evidence, the defendants were accosted on a Saturday morning by the manager of the industrial plant from whose fenced yard 20-25 coils of copper wire remnants had been taken. Their car was struck on the side of an arroyo near the plant and the wire was in the back of their car. The defendants informed the manager that, if he would not call the police, they would put the wire back, which they proceeded to do. The police were called, and when they arrived, the defendants were nowhere to be seen. The defendants never returned to get their car and they were not apprehended until several days .later. The codefendant told the story at the trial that he and the defendant had, on the morning of the offense, gone to get a truck to remove this car from the scene, and that, when they returned, they saw so many policemen around, they left without approaching the car. Their motive in so doing, according to the codefendant was:
“A Well, there was so many polices was there so that naturally, you know, I didn’t want to be- involved with the police, we was afraid to go there, so we just—
“Q Why were" you afraid of the police?
“A Because they probably wouldn’t believe our story that we had been there that night before.”
¶11The circumstances here are. sufficiently differentiating from the Rodgerscase that I believe a different conclusion as to the propriety of the “flight” instruction is justified.
¶12It is my opinion that a review of this record by rational men will indicate the defendant was given his day in court and was fairly tried and convicted. Many hours of this trial were devoted to painstaking efforts to keep from the jury evidence improper under the many decisions of the Supréme Court of the United States which have been rendered in recent years to protect the. rights of those accused of crime. One mistrial of this case has already occurred because of the rocks and shoals of these opinions. While circumnavigating these pitfalls, this trial judge may have erred as to some of the niceties of criminal trial procedure required by the law of his own state.
¶13By the time this action is retried, one must estimate there will be several thousand man-hours of the time of our citizens devoted to the question of guilt here presented. We may soon reach the place where it is just not worthwhile to charge anyone with anything but the most heinous of crimes. Owners who have been victimized by thefts, and policemen on the beat, may come to the point where they turn their backs on many offenses rather than become involved in the entanglements of a modern criminal trial.