— At the instance of the prosecution, the court gave, in each of these cases, the following charge : “An unsuccessful attempt to prove an alibi is always a circumstance of great weight against the prisoner.” Speaking in reference to this statement of the principle in Burrill on Cir. Ev. 519, as quoted Irom Wills, and from which the charge is copied, it is said in Porter v. State, 55 Ala. 95: “We are inclined to think Mr. Burrill states the principle too Strongly. We can not perceive why a failure in an attempted proof .of alibi should be visited with severer intendments than a failure in the attempt to prove any other fact in defense. Of course, a fraudulent attempt to prove a simulated alibi, sustained by perjury, will, when detected, be a circumstance'of great weight against the prisoner. The connection in which Burrill employs the expression above copied tends to show that he had reference to an unsuccessful fraudulent attempt to establish an alibi. In that sense, we agree with him.”
An alibi is not, in the strict and accurate sense, a special defense, but a traverse of the material averment in the indictment, that the defendant did or participated in the particular act charged, and is comprehended in the general plea, not guilty. Because susceptible of easy fabrication, and often attempted to be sustained by perjury, whereby the accused endeavors to break the net-work of facts and circumstances surely bringing him to conviction and punishment, the proof of an alibi is, and should be, subjected to careful scrutiny; but it is an error to assume that the law looks on such attempt with suspicion. A general prejudice against such attempt, it must be admitted, has resulted from the unquestioned fact, that an alibi is often- forged, constituting an artifice or contrivance to shield the guilty. Such proof, however, is positive evidence, which, when founded in truth, negatives the defendant’s presence at the time and place of the crime, and disproves th e prima facie case made by the prosecution. In some cases it is the only resort accessible to the innocent for protection against a false accusation; and though subjected to more rigid scrutiny, should receive from the jury the same
In Miller v. People, 39 Ill. 457, Breese, J., speaking for the court, says: “Failing to prove an alibi should have no greater weight to convince a jury of the guilt of the prisoner attempting it, than the failure to prove any other important item of defense. A prisoner is entitled, to rely on the facts in his favor he may suppose he is able to pi’ove, and if he is •so unfortunate as to fail in his proof, it should not, generally speaking, operate to his prejudice. Proof of an alibi is a defense as legitimate as any other, and the court should not say, lest it prejudice the minds of the jury, that failure to establish it should have great weight against the prisoner.” The reason given by Mr. Wills for the principle stated by him — “because the resort to that kind of defense implies an admission of the truth and relevancy of the facts alleged, and the correctness of the inference drawn from them, if they remain uncontradicted” — is not logically the nature and effect of such defense. An alibi is not a defense of confession and avoidance, but, if established, merely negatives the guilt of the defendant. The charge is not a correct statement of the rule applicable to alibi evidence, and is an invasion of the province of the jury.
The court further charged, at the instance of the State, “In •order to make the defense of an alibi successful, and worthy of serious consideration by the jury, it is essential that the evidence to establish this defense should cover and account for the whole time of the transaction in question, or at least so much of it as to render it impossible that the defendant could have committed the offense for which he is indicted.” There are respectable authorities holding that, to successfully establish an alibi, the evidence must so cover the time when the ■offense is shown.to have been committed as to preclude the possibility of defendant’s presence at the time and place of its commission. In this statement of the rule we do not concur. It is undoubtedly true, that the value and effectiveness of the proof of an alibi largely depend upon the extent to which it •embraces the period of the commission of the crime. In order to be conclusive, the entire time must necessarily be covered; but, without such completed extension, the evidence is ad
Reversed and remanded.