110 Ill. 42 | Ill. | 1884
delivered the opinion of the Court:
Only what the evidence tends to prove is preserved in the record, so that the question of the guilt or innocence of defendant may be regarded as one fairly for the consideration of the jury, and if no error of law hurtful to the defence intervened at the trial, the judgment must of course be affirmed. The only error of law insisted upon is the refusal of the court to give two instructions asked by defendant. Evidence given on behalf of the People tends to prove a case that would warrant a conviction on the charge preferred against defendant. The defence mainly relied on is.what is known in law as an alibi, and evidence introduced by defendant tended to establish.that defence. On this latter branch of the case the court was asked by defendant to instruct the jury, “such a defence is as proper and legitimate, if proved, as any other, and all the evidence on that point should be carefully considered by the jury; and if, in view of all the evidence, the jury have a reasonable doubt as to whether the defendant was in some other place when the offence was committed, they should give the defendant the benefit of the doubt, and acquit him.” Two reasons suggest themselves why this instruction was properly refused: First, all that it contained that was proper to be given to the jury was contained in the instruction that was given by the court to the jury, that charge having been given on behalf of defendant as much as on behalf of the People, and was as favorable to the defence defendant was endeavoring to make as he could ask to have it; and second, it is not an entirely accurate expression of the law on this subject. The authorities quite uniformly hold that some defences, when sought to be made in criminal cases, must be proved by a preponderance of the evidence, and among these are licenses or authorizations from the State, and pleas of autre fois acquit. But whether the burden of proving an alibi by a preponderance of the evidence rests on the defendant who asserts it, the authorities are not so harmonious. The general rule is, where the prosecution makes out such a case as would sustain a verdict of guilty, and defendant offers evidence, the burden is on him to make out that defence, whatever it may be; but as to an alibi, and all other like defences that tend merely to cast a reasonable doubt on the case made by the prosecution when the proof is in, then the primary question is,—the whole evidence being considered, both that given for defendant and for the prosecution,—is the defendant guilty beyond a reasonable doubt. (Wharton on Crim. Ev. (8th ed.) sec. 333.) It will be seen the instruction asked by defendant is broader than the law will warrant, while the charge by the court covers the whole ground sufficiently. Nor is it quite correct to say, as this instruction seems to hold, that when the jury have considered all the evidence offered on the point made as to the alibi, if they have a reasonable doubt as to whether “defendant was in some other place when the offence was committed, ” they should acquit. A better expression of the law would be, when the jury have considered all the evidence, as well that touching the question of the alibi, as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused, they should acquit, otherwise not. The principle is embodied with sufficient accuracy in the oral charge by the court, and that was all that was necessary to be given on this branch of the case.
The other refused instruction, although slightly different in phraseology, is in substance like the one disapproved by this court in Devlin v. The People, 104 Ill. 507. It is erroneous for other reasons. It is not the province of the court to'determine, as a matter of law, in regard to the witnesses examined, whom the jury may or may not believe, and an instruction that so states, or even conveys that impression, is vicious. Nor is it proper for the court to designate any particular branch of the case, and tell the jury unless it is proved beyond a reasonable doubt they should acquit. The “reasonable doubt” the jury is permitted to entertain must be as to the guilt of the accused on the whole evidence, and not as to a particular fact in the ease.
The judgment will be affirmed.
Judgment affirmed.
