State v. McClellan

• Decision Date: 05 February 1900
• Citation: 59 P. 924,23 Mont. 532
• Parties: STATE v. McCLELLAN et al.
• Court: Montana Supreme Court

59 P. 924

23 Mont. 532

STATE v. McCLELLAN et al.

Supreme Court of Montana

February 5, 1900

Appeal from district court, Ravalli county; Frank H. Woody, Judge.

Arthur McClellan and Michael Horrigan were convicted of robbery, and they appeal. Reversed.

Crutchfield & Drappen and R. Lee McCulloch, for appellants.

C. B Nolan, for the State.

HUNT J.

Defendants appeal from a judgment of conviction of robbery and from an order overruling their motion for a new trial.

1. On the trial, defendants introduced evidence tending to support an alibi. The court gave the following instruction at the request of the state (No. 13): "The court instructs the jury 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 any ordinary exertion, have reached the place where the crime was committed, so as to have participated in the commission thereof. The burden is upon the defendant to prove this defense;" and then instructed as follows, at the defendants' request (No 14): "The court instructs the jury that one of the defenses interposed by defendants in this case is what is known in law as an alibi; that is, that the defendants were at another place at the time of the alleged commission of the crime. If proved,--and all of the evidence bearing upon that point should be carefully considered by the jury,--or if, in view of all the other evidence, the jury have any reasonable doubt as to whether these defendants were in some other place when the crime is alleged to have been committed, they should give the defendants the benefit of the doubt, and find them not guilty." "The court instructs the jury that, as regards the defense of an alibi, the defendants are not required to prove it beyond a reasonable doubt to entitle them to an acquittal. It is sufficient if the evidence upon that point raises a reasonable doubt of their presence at the time and place of the commission of the alleged crime." Defendants insist that the first of these instructions quoted was erroneous in itself, and not cured by the two, or either of them, thereafter given. This contention is sound. Evidence of an alibi is competent under defendants' plea of not guilty. No special averment need be made to warrant the introduction of testimony in support of it. The state must prove the presence of the defendant as part of the essence of the crime as charged, except, of course, where such presence is unnecessary; but that phase of the law we need only mention. There is no prima facie case without showing the presence of the defendant; therefore defendant may rebut the evidence of the fact of his presence by evidence of the fact that he was not present. Alibi is not a special defense changing the presumption of innocence, or relieving the state of its burden of proving the guilt of the defendant beyond a reasonable doubt. Bish. Cr. Proc. § 1066. The defendant is not bound to establish it by a preponderance of the evidence. State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026. It is true that, when the state has made out a prima facie case of guilt, the burden is then upon the defendant to rebut such a showing; but, if he relies upon an alibi, he is not obliged to prove it as an effect by a preponderance of evidence, for he need only rebut the evidence of his presence by such an amount of evidence as will, upon a consideration of the whole case, raise a reasonable doubt of his guilt of the crime for which he is on trial. Schultz v. Territory (Ariz.) 52 P. 352. It is a necessary sequence of the statement that when the defendant must be proven guilty by the state beyond a reasonable doubt, if there is a reasonable doubt whether he was present or absent when and where the crime was committed, a reasonable doubt of his guilt has arisen, and acquittal must follow. The somewhat confused question of how the defense of an alibi relates to the whole case in criminal law simplifies itself when we discard the illogical doctrine that it is an affirmative defense, to be proved by the defendant, and substitute therefor the doctrine, which easily flows from the premises already stated, that it is but one of the many defenses offered in rebuttal of the state's evidence, carrying with it to the defendant no burden of proof other than the obligation to introduce evidence sufficient to raise a reasonable doubt. This he may do by evidence sufficient to raise a reasonable doubt of his presence at the place where the act was done, and this doubt may arise without its springing from an affirmatively proved fact that he was somewhere else at the time, and could not have committed it. Section 3101, Code Civ. Proc.; Com. v. Choate, 105 Mass. 451; Johnson v. State, 21 Tex.App. 368, 17 S.W. 252; State v. Taylor, 118 Mo. 153, 24 S.W. 449; Peyton v. State, 54 Neb. 188, 74 N.W. 597. Subjected to the test of these principles, instruction No. 13 was erroneous. Its effect was to prevent the jury from giving consideration to the defendants' evidence tending to establish an alibi unless they had carried their burden, and proved the defense, whereas the court ought to have charged that it was the duty of the jury to consider all the evidence before them, including that bearing upon the alibi, and conclude from the whole thereof whether the guilt of the defendants was proven beyond a reasonable doubt. It follows that the burden of proof was not altered by the defense of an alibi. If the defendants' evidence upon that point raised a reasonable doubt of their guilt, it became the duty of the jury to acquit, even though they were not satisfied that the alibi was clearly established as a fact. State v. Taylor, supra; Walters v. State, 39 Ohio St. 215; People v. Roberts, 122 Cal. 377, 55 P. 137. What we have just said pertains in many respects to instruction No. 14, given at defendants' request, although, were it not for the greater and further extending error throughout instruction 13, given at the instance of the prosecution, we should not reverse the case for the erroneous principle announced in No. 14, inasmuch as defendants cannot predicate error upon the giving of an instruction requested by themselves. Te...