23 Mont. 532 | Mont. | 1900
delivered the opinion of the Court.
Defendants appeal from a judgment of conviction of robbery and from an order overruling their motion for a new trial.
Defendants insist that the first of these instructions quoted was erroneous in itself, and not cured by the two, or either of them, thereafter given. This contention is sound. Evidence of an alibi is competent under defendant’s plea of not guilty. No special averment need be made to warrant the introduction of testimony in support of it. The state must prove the presence of the defendant as part of the essence of the crime as charged, except, of course, where such presence is unnecessary, but that phase of the law we need only mention. There is no prima facie case without showing the presence of the defendant; therefore defendant may rebut the evidence of the fact of his presence by evidence of the fact that he was not present. Alibi is not a special defense changing the presumption of innocence, or relieving the state of its burden of proving the guilt of the defendant beyond a reasonable doubt. (Bishop’s Cr. Proc. Vol. I, Sec. 1066.) The defendant is not bound to establish it by a preponderance of the evidence. (State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026.) It is true that, when the state has made out a prima Jacie case of guilt, the burden is then upon the defendant to rebut such a showing; but, if he relies upon an alibi, he is not obliged to prove it as an effect by a preponderance of evidence, for he need only rebut the evidence of his presence by such an amount of evidence as will, upon a consideration of the whole case, raise a reasonable doubt of his guilt of the crime for which he is on trial. (Schultz v. Territory (Ariz.) 52 Pac. 352.) It is a necessary sequence of the statement that, when the defendant must be proven guilty by the state
The somewhat confused question of how the defense of an alibi relates to the whole case in criminal law simplifies itself when we discard the illogical doctrine that it is an affirmative defense, to be proved by the defendant, and substitute therefor the doctrine, which easily flows from the premises already stated, that it is but one of the many defenses offered in rebuttal of the state’s evidence, carrying with it to the defendant no burden of proof other than the obligation to introduce evidence sufficient to raise a reasonable doubt. This he may do by evidence sufficient to raise a reasonable doubt of his presence at the place where the act was done, and this doubt may arise without its springing from an affirmatively proved fact that he was somewhere else at the time, and could not have committed it. (Section 3101, Code of Civil Procedure; Com. v. Choate, 105 Mass. 451; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; State v. Taylor, 118 Mo. 153, 24 S. W. 449; Peyton v. State, 54 Neb. 188, 74 N. W. 597.)
Subjected to the test of these principles, instruction No. 13 was erroneous. Its effect was to prevent the jury from giving consideration to the defendants’ evidence tending to establish an alibi unless they had carried their burden, and proved the defense, whereas the court ought to have charged that it was the duty of the jury to consider all the evidence before them, including that bearing upon the alibi, and conclude from the whole thereof whether the guilt of the defendants was proven beyond a reasonable doubt. It follows that the burden of proof was not altered by the defense of an alibi. If the defendants’ evidence upon that point raised a reasonable doubt of their guilt, it became the duty of the jury to acquit, even though they were not satisfied that the alibi was clearly established as a fact. (State v. Taylor, supra; Walters v. State, 39 Ohio St. 215; People v. Roberts, 122 Cal. 377, 55 Pac. 137.)
Instruction No. 15 was not consistent with No. 13. The one (No. 13) required the defendants to prove an ahbi and authorized an acquittal on that ground only if the defendants proved the alibi. Evidence only tending to prove it, did not permit the consideration of the alibi as a defense. It was useless to defendants unless they had established the fact. Thus, a reasonable doubt of the presence of the defendants at the commission of the offense charged could not avail them, for they were obliged to prove their absence as a fact in negation of the state’s necessary proof of the fact of presence. No. 15, on the other hand, told the jury to acquit if they had a reasonable doubt of defendants’ presence at the time and place of the commission of the alleged crime. To clearly reconcile these confusing statements is impossible. The supreme court of Iowa, in State v. Maher, 74 Iowa, 77, 37 N. W. 2, has said that substantially similar charges are not necessarily inconsistent or contradictory, resting their opinion upon the difference between a defense and the evidence tending to establish a defense. But the learned court assume, as a matter of course, that, if the alibi is not established by a preponderance of evidence, it is not ,to be considered as proved, and that, unless so proved, it can have no consideration in controlling their finding on the defense of an alibi. With this assumption we cannot agree. In our opinion, too, the argument that a jury would be able to draw the distinction recognized by the Iowa court, at least without special explanation of its possible existence, is strained. The emphasized error in No. 13 cannot well be harmonized with the proposition in No. 15 without overlooking the full applicabil
The discordance between the rule that a reasonable doubt justifies an acquittal, yet that, where defendants rely upon an alibi, they must prove it by a preponderance of evidence, is especially well pointed out by the very strong reasoning of Chief Justice Adams in his dissenting opinion in State v. Hamilton, 57 Iowa, 596, 11 N. W. 5, and by Judge Fuller, dissenting, in State v. Thornton, (S. D.) 73 N. W. 196, 41 L. R. A. 530.
In conclusion, our opinion is that instruction No. 13 was radically wrong, and that the prejudice done by it to the defendants’ rights was not cured by instruction 15, for the two are inharmonious and misleading.
We will briefly notice a few points that are apt to arise on another trial of the case.
The judgment and order appealed from are reversed, and the cause remanded, with directions to proceed as herein indicated.
Reversed and remanded.