Shoemaker v. Territory

• Decision Date: 13 February 1896
• Citation: 43 P. 1059,4 Okla. 118,1896 OK 35
• Parties: SHOEMAKER v. TERRITORY.
• Court: Oklahoma Supreme Court

43 P. 1059

4 Okla. 118, 1896 OK 35

SHOEMAKER v. TERRITORY.

Supreme Court of Oklahoma

February 13, 1896

Syllabus by the Court.

An instruction to the jury that the burden is upon the defendant to prove an alibi by a preponderance of the evidence,--that is, by greater and superior evidence,--and that the defense of alibi, to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged the accused was at another place, so far away, or under such circumstances, that he could not, with all the means of travel within his control, have reached the place where the crime was committed so as to have participated in the commission thereof; and that, if the jury believe that the territory has made out such a case as, under such instruction as to an alibi, will sustain a verdict of guilty of the crime of murder charged in the indictment, then the burden is upon the defendant to make out his defense of alibi,--is erroneous, and is sufficient ground for a reversal of the cause, although the court also instructed the jury, in the same connection, that, all the evidence being considered as well that touching the question of an alibi as the criminating evidence introduced by the prosecution, if the jury entertain a reasonable doubt of the guilt of the accused, they should acquit him.

Appeal from district court, Kingfisher county; before Justice John L. McAtee.

The defendant, Henry M. Shoemaker, was, in September, 1894 indicted by the grand jury of Blaine county, Okla., charged with the murder of one Edward H. Townsend on the 28th day of March, 1894, and on his application the venue of the cause was changed to Kingfisher county, where the defendant was convicted, and the punishment assessed by the jury and adjudged by the court at imprisonment at hard labor in the penitentiary for life. Defendant appeals. Reversed.

Buckner & Son, for appellant.

C. A Galbraith, Atty. Gen., for the Territory.

BIERER J.

The appellant has assigned numerous errors for a reversal of the judgment of the district court, but only two are relied upon by counsel for appellant in their brief, and only one is necessary for our consideration. On the question of alibi the court instructed the jury as follows: "(30) The defendant claims as his defense what is known in law as an 'alibi'; that is, that at the time the murder with which he is charged was being committed he was at a different place, so that he could not have participated in its commission. (31) The burden is upon the defendant to prove this defense for himself by the preponderance of the evidence; that is, by the greater and superior evidence. The defense of alibi, to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged the accused was at another place, so far away, or under such circumstances, that he could not, with all the means of travel within his control, have reached the place where the crime was committed so as to have participated in the commission thereof. (32) The jury is instructed that if they believe that the territory has made out such a case as, under this instruction herein given, will sustain a verdict of guilty of the crime charged in the indictment, then the burden is upon the defendant to make out his defense of an alibi; and upon all the evidence, then the primary question is, the whole of the evidence being considered, both that given by the defendant and that given for the territory, is the defendant guilty beyond a reasonable doubt? The law is that, when the jury has considered all the evidence, as well that touching the question of the alibi as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused of the offense of which he stands charged, they should acquit; but, if they have no such reasonable doubt, then they should not acquit, but should find the defendant guilty." Exceptions were saved to the giving of instructions 31 and 32, and one of the grounds upon which appellant relies for a reversal of the case is the assignment of error committed in giving instruction 31. We have set out the three instructions, as they all go together and are the entire instructions of the court on this question. Instruction 31 is erroneous. The general provision of our statute places the burden of proof upon the territory and we have no provision which changes or limits this general provision with reference to proving an alibi. Section 5201, St. 1893, provides: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted." This section is identical in substance with section 228 of the Criminal Code of Kansas, which was held by the supreme court of that state, in the case of State v. Child, 40 Kan. 482, 20 P. 275, "to cast the burden of proof on the state"; and where it is further held: "There is a presumption that clings to a person charged with crime, through every successive step of his trial, that he is innocent; and this presumption is never weakened, relaxed, or destroyed until there is a judgment or conviction. The state is required to prove his guilt beyond any reasonable doubt, and all the defendant has ever been required to do is to produce evidence that creates such a doubt as to entitle him to an acquittal. He is not required to prove his innocence; all that is demanded of him is to show such a state of facts as to create a reasonable doubt of his guilt. This defense of alibi is peculiar in this respect, so far as this case is concerned: that the state is bound to prove, in making its case, that the defendant was present at the commission of the crime; and this material fact it must prove beyond any reasonable doubt. The defendant alleges he was not present, and he offers evidence to sustain this allegation. The trial court said he must prove it by a preponderance of the evidence, while the general rule of law outside of the statutory requirement casts the burden of proving that fact on the state." The court in that case reversed the judgment because the trial court had given instructions, in not nearly as strong language as that in which the instruction in question is couched, to the effect that the burden of proving an alibi is on the defendant to establish the same by a preponderance of the evidence, but directing the jury to acquit the defendant unless, from all the circumstances surrounding the case, they were satisfied of his guilt beyond a reasonable doubt. The offer of evidence by the defendant tending to prove an alibi does not change the burden of proof, and shift it upon the defendant. And this principle has been vigorously maintained even in the absence of, or at least without reliance upon, such a statute as that of ours referred to. Walters v. State, 39 Ohio St. 215; State v. Chee Gong (Or.) 19 P. 607; Turner v. Com., 27 Am. Rep. 683; 1 Greenl. Ev. § 74, note. In Mr. Greenleaf's note, just cited, he uses this positive language in expressing the rule: "In criminal cases the weight of evidence or burden of proof never shifts upon the defendant, but is upon the government throughout." In Wisdom v. People (Colo. Sup.) 17 P. 519, the instruction that: "To render proof of an alibi satisfactory, the evidence must cover the whole time of the transaction in question, so as to render it impossible that the defendant setting up such defense could have committed the act,"--was held reversible error. In French v. State, 12 Ind. 670, reversible error was held to have been committed by giving the instruction: "Evidence which tends...