85 P. 730 | Ariz. | 1906
The appellant, Robert Barton, was tried before a jury in the district court of Pima County on the 8th and 9th of November, 1905, upon a charge of robbery, and upon
The counsel who represented the defendant in the lower court have not entered any appearance here. There is no bill of exceptions, assignment of errors, nor any brief or argument designating any error complained of in the proceedings had in the trial court, presented to ns in support of the appeal in this case. Under these circumstances, we can only look into the record, and unless some reversible error be apparent therein, affirm the judgment of the lower court. While the record does not contain the entire charge of the court to the jury, it does present the following instruction given at the request of the territory: “The defendant claims as one of his defenses what is known in law as an alibi; that is, at the time the robbery with which he is charged was being committed, he was at a different place, so that he could not have participated in its commission. The burden is upon this defendant to prove this defense by a preponderance of evidence; that is, by the greater and superior evidence. The defense of alibi, to be entitled to consideration, must be such as to show that, at the very time of the commission of the crime charged, the accused was at another place, so far away or under such circumstances that he could not with any ordinary exertion have reached the place where the crime was committed so as to have participated in the commission thereof.” This instruction was presented to this court in the case of Schultz v. Territory, and we held that it did not correctly state the law applicable to the defense of alibi. Schultz v. Territory, 5 Ariz. 239, 52 Pac. 352. We there said: “The burden of proof never rests on the accused to show his innocence, or to disprove the facts necessary to establish the crime with which he is charged. The defendant’s presence at, and participation in, the corpus delicti, are affirmative material facts that the prosecution must show beyond a reasonable doubt, to sustain a conviction. ... If a consideration of all the evidence in the case leaves a reasonable doubt of his presence, he must be acquitted. We think it was the duty of the trial judge to have said to the jury that they must consider all the evidence in the case, including that relating
Because of this erroneous instruction, the judgment of the lower court is reversed and the cause remanded for a new trial.