67 Ga. 349 | Ga. | 1881
The plaintiff in error was indicted and tried for the offense of assault with intent to commit a rape. Under the evidence and charge of the court, the jury found the defendant guilty, whereupon defendant made a motion for a new trial on the folllowing grounds:
(i.) That the verdict is contrary to the evidence, and without evidence to support it.
(2.) That said verdict is decidedly against the weight of evidence.
(3.) The court erred in charging the jury “that when a defendant undertook to set up an alibi in his defense, the burthen of proof is upon him to do it, and he must show such a state of facts by the testimony as will make it certain that he was elsewhere, and that it was impossible for him to have been there at the time and place when it is alleged the offense was occurring. To make it available, it must be certain in point of time. You will ascertain the time in the evening the act was committed, and ascertain where John Ware was at that time ; and when you come to set up an alibi, for the alibi to be available to him, it must appear certainly where he was, and that he was not at a place where he could have committed the act, but was elsewhere. But, if, on account of the uncertainty of time given by his own witnesses, it is not made certain that he was elsewhere, the alibi will not be available.” ■
*351 (4.) That said verdict is contrary to law.
The court overruled the motion for a new trial, and defendant below excepted.
The evidence must show the defendant on trial at the time of the commission of the offense was at another place, and was not, therefore, at the place where the offense was perpetrated. And this fact must be established with certainty. The proof must show (to the satisfaction of the jury) that it was impossible for the .accused to be at the time and place where the offense was perpetrated. If it fails in this, the alibi as a defense/^ se fails. Not only must the proof show the accused was at a different place from the scene of the offense, but it is equally essential that at the time of the alleged offense it must appear the accused was at a different place from the place where the offense occurred. We think the court designed, and did give in charge in his instruction, the rule above set forth. We do not mean to say,if the alibi should fail to be established with the certainty the law requires, that the proof submitted on this point may not be considered by the jury in connection with the other evidence, so as to raise reasonable doubts as to the guilt of the accused. And as there is no complaint that the court did not instruct the jury as to the law of reasonable doubts, we must presume this was done, and if so, then the defendant had the full benefit of the law, and we find no error that entitles him to a new trial on this ground of error.
Let the judgment below be affirmed.