55 Kan. 323 | Kan. | 1895
James Conway was convicted of the offenses of burglery and grand larceny, and the punishment adjudged was imprisonment at hard labor in the penitentiary for the term of six years. In his appeal he assigns the rulings of the court upon the instructions as error, and the transcript contains sufficient of the evidence to present the errors complained of. It is first contended that the refusal of several instructions that were requested upon the subject of circumstantial evidence was prejudicial error. While the charge of the court did not call special attention to circumstantial or any other particular kind of evidence, it is true that the instructions given were so broad and general as to cover all the testimony that was offered. In view of the fact, however, that the testimony was largely circumstantial, the court might properly have laid down the rules of law governing that class of evidence and thus have assisted the jury in correctly applying the la>V to the facts of the case. Whether the omission of this duty is of itself a sufficient ground for a reversal it is not important to decide. The principal complaint is based upon the charge of the court with respect to the defense of an alibi. Testimony was offered tending to show that the defendant was at another and different place when the crime was committed, and did not know of or participate in the same. The court refused to give an instruction to the effect that the defendant is not required to prove the defense of an alibi beyond a reasonable doubt to entitle him to an acquittal; that it is sufficient if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged. The court in its general
Where there is testimony that the accused was so far removed from the place of the crime at the time of its commission as to make it impossible that he could have committed it, the court should inform the jury as to the law of alibi. (The State v. Johnson, 40 Kas. 266.) It is a legitimate defense, and the instructions requested to the effect that the accused is not required to establish the defense beyond a reasonable doubt, or even by a preponderance of the testimony, to entitle him to an acquittal, correctly stated the law. In a case where the personal presence of the accused is necessary to a conviction, that fact must be established by the state by evidence that will convince the jury beyond a reasonable doubt. The burden of proof is upon the state, and is not shifted because of the attempt of the accused to prove an alibi; and if, by reason of the evidence relating to that question, the jury should doubt the guilt of the accused, he is entitled to an acquittal. As we have seen, this view of the law was withheld from the jury, and the error rvas emphasized by the charge of the court that if the claim made by Comvay that he was several miles away from the scene of the crime, and did not participate in it, is true, he should be acquitted. This instruction, in effect, required the jury to believe the proof of an alibi before they could acquit him ; while, as we have seen, the defendant is not obliged to absolutely
The judgment must be reversed, and the cause remanded to the district court for a new trial.