1. Testimony having been intro-. duced tending to discredit the witness Jennie McClellan, it was competent to introduce evidence to support her general credit as a witness. — 1 Green. Ev., § 469; Lewis v. State,
2. In Prince v. State, 100 Ala, 146, the trial court had instructed the jury, “that the burden of proof is on the defendant to establish his alibi, and this must be done to your satisfaction.” Reviewing the instruction, this court said : “The proof exacted of the defendant in this charge to sustain the alibi, is too high, in that it omits the word ‘reasonable.’ If the jury were reasonably sat- . isfied from the evidence, that the defendant was elsewhere, and not at the place where the offense was committed, the burden cast upon him by the law is fully met.” Doubtless, it was this expression of opinion, which induced the trial court to give the - first instruction requested by the solicitor. But it should have been observed that the court proceeded further and said :
‘ ‘The defense of an alibi is as legitimate and effective as any other, and whenever the evidence introduced supports this defense, and its effect is to create a reasonable doubt in the minds of the jury of the defendant’s guilt, he is as much entitled to an acquittal, as if the reasonable doubt had been created or produced by any other legitimate evidence. We would not be understood as saying that the jury may disregard other evidence in the case, and consider only that in relation to the alibi. The whole evidence should be duly considered and weighed, and if after considering the whole evidence, the jury' have á reasonable doubt of the defendant’s*5 guilt, arising out of any part of the evidence, they should acquit.” In Pelham v. State,89 Ala. 28 , the trial court had instructed the jury, ‘ ‘it is the duty of the defendant in proving an alibi, to reasonably satisfy the jury that he .was elsewhere at the time of the commission of the offense.” This court said : “We understand this charge to be simply, that the burden of proof as to an alibi, is upon the party who sets up that defense. If the defendant apprehended that the form of. the statement iended to mislead the jury, or that they might not understand that the words, ‘it is the duty of the defendant/ &c., merely imposed on him the onus probandi on this issue, he should have asked an explanatory instruction.”
The instruction we are considering, may be capable of the construction, that a defendant relying on an alibi, must prove it, as a party in a civil case must prove a fact on which he relies, by a preponderance of evidence, and unexplained, as it was explained in Prince v. State, supra, may have had a tendency to mislead the jury. As is very justly said’in People v. Fong Ah Sing,
The several counts, though laying the ownership of the thing stolen in different persons, manifestly relate to a single burglary. A conviction upon either, required the same judgment and the same sentence as a conviction upon all; in such case, all that the law requires, is a general verdict. — Kilgore v. State.,
The sixth section of the act of February 18th, 1895, entitled “An act to amend an act to establish a city court for the county of Talladega, approved Feb. 23rd,
Let the judgment be affirmed.