Dawson v. State , 62 Miss. 241 ( 1884 )

Arnold, J.,

delivered the opinion of the court.

The third instruction given for the State and to which appellant excepted is in these words : “The court instructs the jury that if testimony has been offered to establish an alibi, or the absence of the defendant at the time the crime is charged to have been committed, that such testimony should be weighed with great caution in connection with all the evidence in the case, because it is a defense easily fabricated and often attempted by contrivance or perjury; but when it is fully and satisfactorily established by the evidence to the satisfaction of the jury, it is a good and complete legal defense to the prosecution and entitles the defendant to an acquittal.”

There is error in this instruction, and we find nothing in the other instructions to counteract or remove its dangerous character and tendency, and we are compelled to reverse for this reason.

In Nelms v. The State, 58 Miss. 362, an .instruction to the jury which discredited the defense of an alibi was condemned, but it was intimated that the error would have been cured if the jury had also been informed that when fully and satisfactorily proven, an alibi was a perfectly good and legal defense. In Simmons v. The State, 61 Miss. 243, the intimation referred to in Nelms v. The State was repudiated, and it was declared tbat tbe defense of an ahili was like any other defense, and should be left to the jury uninfluenced by charges from the court calculated to disparage or excite prejudice against it. We adhere to the opinion in the latter case and to the qualification therein imposed on Nelms v. The State.

The instruction in the case before us also informed the jury that the defense of an alibi must be fully and satisfactorily established, to the satisfaction of the jury, before it was a good and complete defense. Such is not the law of the land in which we live. The defendant is not required, in' any phase, of any criminal case, to prove his defense to the satisfaction of the jury, but it is sufficiently established if, upon consideration of the whole evidence, there is a reasonable doubt of his guilt. Pollard v. The State, 53 Miss. 410; Cunningham v. The State, 56 Miss. 269 ; Hawthorne v. The State, 58 Miss. 778; Smith v. The State, Ib. 867; Ingram v. The State, ante, 142.

Reversed,.