Ware v. The State Of Ga.

• Decision Date: 30 September 1881
• Citation: 67 Ga. 349
• Court: Georgia Supreme Court
• Parties: Ware . vs. The State of Georgia.

67 Ga. 349

Ware . vs. The State of Georgia.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Criminal Law. Alibi. New Trial. Before Judge Underwood. Floyd Superior Court. March Term, 1881

Reported in the decision.

J. H. Reese; Forsyth & Hoskinson, for plaintiff in error.

J. I. Wright, Solicitor General, by T. W. Alexander for the state.

Speer, Justice.

The plaintiff in error was indicted and tried for the offense of assault with intent to commit a rape. Under the evidence and charge of the court, the jury found the defendant guilty, whereupon defendant made a motion for a new trial on the folllowing grounds:

(1.) That the verdict is contrary to the evidence, and without evidence to support it.

(2.) That said verdict is decidedly against the weight of evidence.

(3.) The court erred in charging the jury "that when a defendant undertook to set up an alibi in his defense, the burthen of proof is upon him to do it, and he must show such a state of facts by the testimony as will make it certain that he was elsewhere, and that it was impossible for him to have been there at the time and place when it is alleged the offense was occurring. To make it available, it must be certain in point of time. You will ascertain the time in the evening the act was committed, and ascertain where John Ware was at that time; and when you come to set up an alibi, for the alibi to be available to him, it must appear certainly where he was, and that he Was not at a place where he could have committed the act, but was elsewhere. But, if, on account of the uncertainty of time given by his own witnesses, it is not made certain that he was elsewhere, the alibi will not be avail able."

(4.) That said verdict is contrary to law. The court overruled the motion for a new trial, and defendant below excepted.

1. The main point pressed on the argument here was the alleged error in the charge of the court as excepted to. "Alibi is a defense that involves the impossibility of the person's presence at the scene of the offense at the time of its commission, and the range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence." Johnson vs. The State, 59 Ga., 142; Goldsmith vs. The State, 63 Ga., 88.

The evidence must show the defendant on trial at the time of the commission of the offense was at another place, and was not, therefore, at the place where the offense was perpetrated. And this fact must be established with certainty. The proof must show (to the satisfaction of the jury) that it was impossible for the accused to be at the time and place where the offense was perpetrated. If it fails in this, the alibi as a defense per se fails. Not only must the proof show the accused was at a different place from the scene of the offense, but it is...