State v. Ward

• Decision Date: 21 June 1918
• Citation: 31 Idaho 419,173 P. 497
• Parties: STATE, Respondent, v. WILLIAM WARD, Appellant
• Court: Idaho Supreme Court

173 P. 497

31 Idaho 419

STATE, Respondent, v. WILLIAM WARD, Appellant

Supreme Court of Idaho

June 21, 1918

CRIMINAL LAW-INSTRUCTIONS ON ALIBI AS A DEFENSE-EFFECT OF ERRONEOUS INSTRUCTION WHEN NOT PREJUDICIAL.

1. Where in a criminal case the defendant relies upon the defense of alibi, the state having established a prima facie case against him, the burden is upon him to prove that defense by such evidence and to such a degree of certainty as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to his guilt.

2. Upon the defense of alibi in a criminal case, it is error to instruct the jury that the burden of proof is upon the defendant, unless such statement be qualified to the effect that the evidence upon the question of alibi need only be sufficient to raise a reasonable doubt in the mind of the jury to justify an acquittal.

3. Where the instructions in a criminal case as a whole state the law, and the jury from a consideration of all the evidence could not have reached any other conclusion than that the defendant was guilty of the crime charged, the giving by the court of an instruction which, considered alone, is erroneous, will not warrant the appellate court in reversing a conviction, as the defendant could not have been prejudiced in any substantial right thereby.

[As to burden of proof and on whom it rests, see notes in 28 Am.Rep 308; 33 Am.Rep. 736; 37 Am.Rep. 148]

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Prosecution for adultery. From a judgment of conviction defendant appeals. Affirmed.

Affirmed.

A. L Morgan, for Appellant.

The following instruction is erroneous: "The defense of alibi to be entitled to consideration must be such as to show that at the very time of the alleged commission of the crime charged, the accused was at another place, 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."

This instruction clearly places the burden of proof upon the defendant to establish the defense of alibi by a degree of proof beyond the amount necessary to raise a reasonable doubt. (People v. Davenport, 13 Cal.App. 632, 110 P. 318; Wisdom v. People, 11 Colo. 170, 17 P. 519.)

T. A. Walters, Atty. Gen., A. C. Hindman, J. P. Pope and J. Ward Arney, Assistants, for Respondent.

The instruction upon the defense of alibi particularly complained of by appellant correctly states the law. (State v. Burton, 27 Wash. 528, 67 P. 1097, 1098; State v. Maher, 74 Iowa 77, 37 N.W. 4; State v. McGarry, 111 Iowa 709, 83 N.W. 718; Glover v. United States, 6 Ind. Ter. 262, 91 S.W. 41; Mullins v. People, 110 Ill. 45; 2 Brickwood's Sackett on Instructions, secs. 2436, 2438.)

BUDGE, C. J. Rice, J., concurs. MCCARTHY, District Judge, Dissenting.

OPINION

BUDGE, C. J.

The appellant was convicted of the crime of adultery. This appeal is from the judgment.

The specifications of error, based upon certain instructions given, raise the only debatable question in the case. The instructions complained of are as follows:

1. "One of the defenses interposed by the defendant in this case is what is known in law as an alibi; that is, that the defendant was at another place at the time of the alleged commission of the crime, and all the evidence bearing upon that point should be carefully considered by the jury, and, if, after considering the evidence the jury have a reasonable doubt as to whether the defendant was in some other place when the crime is claimed to have been committed, they should give the defendant the benefit of the doubt and find him not guilty."

2. "It is incumbent upon the defendant to produce such evidence as to raise a reasonable doubt as to the defendant having been at the place where the crime is claimed to have been committed."

"The defense of alibi, to be entitled to consideration must be such as to show that at the very time of the alleged commission of the crime charged, the accused was at another place, under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed, so as to have participated in the commission thereof."

The first instruction and the first paragraph of the second instruction are sustained by State v. Rice, 7 Idaho 762, 774, 775, 66 P. 87, and State v. Webb, 6 Idaho 428, 435, 55 P. 892. The rule is better stated in State v. Bogris, 26 Idaho 587, 600, 144 P. 789, in the following language: "The true doctrine seems to be that where the state has established a prima facie case, and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt of the guilt of the accused."

The latter paragraph of the second instruction, while sustained by the following authorities (State v. Maher, 74 Iowa 77, 37 N.W. 2; State v. McGarry, 111 Iowa 709 83 N.W. 718; Glover v. United States, 6 Indian Terr. 262, 91 S.W. 41; Mullins v. People, 110 Ill. 42; Brickwood's Sackett on Instructions, sec. 2435; State v. Burton, 27 Wash. 528, 67 P. 1097, 1098; State v. Jones, 71 N.J.L. 543, 60 A. 396), is erroneous and should not have been given. (People v. Fong Ah Sing, 64 Cal. 253, 28 P. 233; Shoemaker v. Territory, 4 Okla. 118, 43 P. 1059; Wright v. Territory, 5 Okla. 78, 47 P. 1069; McNamara v. People, 24 Colo. 61, 48 P. 541; People v. Roberts, 122 Cal. 377, 55 P. 137; State v. McClellan, 23 Mont. 532, 75 Am. St. 558, 59 P....