59 Ark. 379 | Ark. | 1894
(after stating the facts). It is sufficient to say that there seems, upon close examination by the court, to be no tenable objection to the instructions. They sufficiently and strongly declare the law applicable to this case.
The tenth instruction given is very vigorously assailed by the counsel for appellant in their brief, and they have supported their objections to it with much earnestness and ability. The court has given it a close and full consideration, and have reached the conclusion that it is not obnoxious to the objections urged against it. It was not improper for the court to instruct the jury, as it did in the first part of this instruction, that “the burden of showing an alibi is on the defendant, but if, on the whole case, the testimony raises a reasonable doubt that defendant was present when the crime was committed, he should be acquitted.” That this is correct seems to be well settled by a decided weight of authority. 1 Bish. Cr. Pro. sec. 1066; Whart. Cr. Ev. sec. 333; State v. Fry, 67 Ia. 478; State v. Rivers, 27 N. W. 781; State v. Jennings, 81 Mo. 185; State v. Waterman, 1 Nev. 543; State v. Freeman, 5 S. E. 921; Commonwealth v. Choate, 105 Mass. 451; Garrity v. People, 107 Ill. 162; Ware v. State, 67 Ga. 349; Fife v. Commonwealth, 29 Pa. St. 429; McCoy v. State, 46 Ark. 152; Blankenship v. State, 55 Ark. 244.
Another portion of the tenth instruction is as follows: ‘‘The jury should scrutinize the testimony of the witnesses to see if some of them may not be mistaken as to dates and times they saw the defendant, and it is proper for the jury to consider the lapse of time since such occurrence happened, and whether witnesses are likely, after such lapse of time, to be certain as to the precise time or hour they saw the defendant on the night that the shooting occurred. In other words, in arriving at their conclusion on this point, the jury should, if witnesses testify that defendant was, at the time of the shooting, at a different place from where the shooting occurred, consider whether it may not be true that the defendant may have been present at the time Geo. Black was shot, and that some of the witnesses are honestly mistaken as to the exact time they saw the defendant on the said night.” Counsel for appellant urge that ‘‘this invades the province of the jury.” The State has offered no evidence contradicting the witnesses who testified in behalf of the defendant as to an alibi, except that of Henson, a self-confessed murderer and assassin, and they ask what possible theory suggested to the court its right to attempt to impeach them from the bench? They say: ‘‘It is a charge upon the weight of evidence, and an expression of the court’s personal views, and clearly erroneous.” While this part of the instruction is strongly cautionary, when carefully considered, it will be seen that it does not intimate any opinion upon the part of the judge upon the weight of the evidence, nor does it tend to impeach or disparage the testimony introduced to prove an alibi, or to cast suspicion upon it.
The counsel for appellant cite, as directly in point, to support their contention, the case of People v. Pearsall (Mich), 15 N. W. 98. The reason why the court condemned the instruction in that case was, as stated by the court, that “the charge was an indirect, but evident, instruction that the people’s evidence was worthy of being used, and might be used, as a standard by which to test the truth of that given on this subject -on the part of the defense.” The court said: “The charge isolated this testimony for the defense, and, because it was not consistent with the evidence for the people, the jury were told that they should weigh it with the other testimony to see whether the defendant’s witnesses were not mistaken. This discrimination, and the ground of it, were disparaging, and it was a natural inference that the circuit judge regarded the testimony thus pointed out as suspicious.”
In the case, of People v. Wong Ah Foo (Cal.) 10 Pac. Rep. 375, the court gave the following charge in reference to evidence introduced to prove an alibi : * ‘Now, in determining that fact, gentlemen, I instruct you that evidence to establish an alibi, like any other evidence, may be open to special observation! Persons may, perhaps, fabricate (it) with greater hopes of success, or less fear of punishment, than most other kinds of evidence; and honest witnesses often mistake dates and periods of time, and identity of people seen, and other things about which they testify.” On appeal, the Supreme Court of California said : “Upon a close ex-animation of the whole charge, including the part quoted, and giving it an unrestrained interpretation, we do not perceive that the court charged the jury upon the weight, of evidence. It is undoubtedly true, as a matter of fact, that untruthful witnesses may fabricate anything, and testimony of an alibi, may, perhaps, be more easily fabricated than most other kinds, and those facts are-within the knowledge of most persons of ordinary understanding and experience; * * * and, viewed in the-light of good sense, we do not see that the language complained of went beyond a reasonable and fair latitude-of observation permissible from the judge to the jury’.”'
In the case of People v. Lee Gam (Cal.) 11 Pac. Rep. 183, the jury were told in an instruction as to evidence-to establish an alibi: ‘‘Still you are to scrutinize the-testimony offered in the support of an alibi with care, that you may be satisfied that a fabricated defense is-not being imposed upon you.” On appeal, this was approved by the supreme court of California. The court instructed them, of course, that if they had a reasonable-doubt on the whole case, they should acquit.
In the opinion of the court, there . was testimony tending to corroborate the witness Henson, and tending to connect the defendant with the commission of the offense, and the evidence was sufficient to support the verdict of the jury.
The judgment is affirmed.