CHAPTER XLIX. EVIDENCE OF ALIBI. § 417. Term Defined. 418. Essentials of Alibi Evidence. 419. What the Proof Involves. 420. Credibility of-how Strengthened. 423. Prejudicial Theories Regarding this Defense. 425. Not Bound to Prove beyond Reasonable Doubt. 427. The General Rule. 428. Miscellaneous Decisions. $ 417. Term Defined.-Alibi is a Latin word, signifying elsewhere, and, in law, means a defense interposed by the defendant, by which he proves that, at the time of the commission of the offense, he was at some other place than that where it was committed. § 418. Essentials of Alibi Evidence. It is obviously essential to the satisfactory proof of an alibi that it should cover the whole of the time of the transaction in question, so as to render it impossible that the prisoner could have committed the act; it is not enough that it renders his guilt improbable merely. Rex v. Fraser, Alison, Princ. 625, cited in Wills, Circ. Ev. 168. An alibi is a legitimate and proper defense to make, and if satisfactorily made is conclusive. Innocent men would and should resort to it, and no doubt it has often been the means of escape under wrongful charges. But it is a defense sometimes attempted by contrivance, subornation and perjury. It does not involve a complicated inquiry. Proof of it is measurably simple and direct, therefore persons may fabricate it with greater hope of success and less fear of punishment than many other kinds of evidence. § 419. What the Proof Involves.-Proof of it involves accuracy as to dates, times of day and identity of persons seen, sub jects in respect to which honest witnesses oftener mistake than in respect to many other things to which they testify. The direct proof therefore offered to sustain an alibi is to be subjected to a rigid scrutiny, because standing by itself it does not attempt to control or rebut the evidence of facts sustaining the charge, but attempts to prove affirmatively another fact inconsistent with it. It is in direct conflict with all the evidence tending to show the guilt of the defendant, because in so far as that tends to show he committed the offense, it tends in the same degree to show that he was at the place of the crime when committed. If therefore the proof of the alibi does not outweigh the proof that he was at the place when the crime was committed, it is not sufficient. In this conflict of evidence, whatever tends to support one theory, tends in the same degree to rebut and overthrow the other, and it is for the jury to decide which is the truth. State v. Ward, 61 Vt. 153. It cannot be held as a principle of law, that the defense of alibi is liable to great abuse, growing out of the ease with which it may be fabricated, and the difficulty of detecting the fabrication. This is not always true of such a defense. Sometimes the evidence which tends to prove an alibi is open, clear, and direct, without any of the signs of fabrication about it. Sometimes, doubtless, it is open to suspicion. So may evidence be which tends to prove any other fact. Law is fixed and uniform; it cannot be one thing in one case, and another thing in another case, as evidence may be. We know of no rule of law which attaches a suspicion to, or fixes a blemish upon, evidence tending to prove an alibi, any more than it does upon evidence tending to prove any other fact. Albin v. State, 63 Ind. 598. $420. Credibility of-how Strengthened. "The credibility of an alibi is greatly strengthened if it be set up at the moment when the accusation is first made, and consistently maintained throughout the subsequent proceedings. On the other hand, it is a material circumstance to lessen the weight of a defense of this kind, if it be not resorted to until sometime after the charge has been made; or if having been once resorted to, a different and inconsistent defense is afterwards set up. Wills, Circ. Ev. 168. "This defense often involves considerations of the most difficult and perplexing nature. It is not an uncommon artifice to endea vor to give coherence and effect to a fabricated defense of alibi, by assigning the events of another day to that on which the offense was committed, so that the events being true in themselves, are necessarily consistent with each other, and false only as they are applied to the day in question. Wills, Circ. Ev. 83." 2 Colby, Crim. L. chap. 4, § 7. § 421. Want of Harmony in the Decisions.-There is not entire harmony in the decisions as to the degree of proof of an alibi which must be produced, in order to entitle a defendant to an acquittal. In French v. State, 12 Ind. 670, 74 Am. Dec. 229, the trial court instructed the jury that, if he (the defendant) seeks to prove an alibi, he must do it by evidence which outweighs that given for the state, tending to fix his presence at the time and place of the crime. This instruction was held to be erroneous, In State v. Waterman, 1 Nev. 543, the following instruction was held to be erroneous: "It is not sufficient to warrant an acquittal that he merely raised a reasonable doubt as to whether the alibi is established, but, as before stated, you must be satisfied of its truth by testimony. If you believe from the testimony that the defendant, Waterman, at the time alleged, was in the city of Virginia, you must acquit him." In the course of a very lucid. and able opinion, the court say: "The rule of law and of common sense is, that where there is a reasonable doubt as to whether a prisoner has committed the act or offense with which he stands charged, he must be acquitted, whether the doubt arises from a defect in the evidence introduced by the state or from the evidence in rebuttal by the defendant." In the trial of Webster for the murder of Parkman, before the supreme judicial court of Massachusetts, the following direction was given to the jury: "In the ordinary case of an alibi when a party charged with a crime attempts to prove that he was in another place at the time, all the evidence tending to prove that he committed the offense tends in the same degree to prove that he was at the place when it was committed. If, therefore, the proof of the alibi does not outweigh the proof that he was at the place when the offense was committed, it is not sufficient." Com. v. Webster, 5 Cush. 324, 52 Am. Dec. 711. This doctrine was simply recognized and approved in State v. Vincent, 24 Iowa, 570, 95 Am. Dec. 753; though the alibi sought to be established in that case was of the alleged deceased, and not of the prisoner. The evidence sustaining it must outweigh the proof tending to establish its contradictory hypothesis. For this purpose a bare preponderance is sufficient. A preponderance of testimony is capable of producing very different degrees of conviction. It may be barely sufficient to turn the scale of probability in favor of the proposition which the mind is called upon to adopt. Where it so turns the scale, the fact which it favors is said to be proved by a preponderance of evidence. From this point the evidence may gradually increase in intensity until it creates full satisfaction, which is not distinguishable from satisfaction beyond a reasonable doubt. State v. Hardin, 46 Iowa, 623, 26 Am. Rep. 174. There is sharp conflict in decisions in regard to the extent to which the evidence must go in order to render the alibi effectual. $422. Burden of Proving with the Defendant.-When the defense is that of an alibi, the law casts the burden upon the defendant to reasonably satisfy the jury that he was elsewhere at the time of the commission of the offense. Pellum v. State, 89 Ala. 32. This rule of law, as applicable to the defense of an alibi, does not require of the defendant to reasonably satisfy the jury of his exact whereabouts every moment of the time necessary to cover the period when the offense was committed, but he is required to prove such a state of facts or circumstances as to reasonably satisfy the jury that he was elsewhere than at the place where and at the moment when the offense was committed. Pellum v. State, supra; Allbritton v. State (Ala.) Jan. 7, 1892; Fate v. State, 1 Am. & Eng. Enc. Law, 454, 455; 1 Bishop, Crim. Proc. SS 1066, 1067. The extent to which the proof must go in making out an independent defense has been the subject of much discussion, some authorities holding that it is sufficient in any case to create a reasonable doubt of guilt, while others favor the doctrine that the defense must be made out to the satisfaction of the jury. The rule laid down in Wharton's Criminal Evidence (§ 331) is that when the case of the prosecution is admitted and the defense is one exclusively of avoidance, then this defense must be made out by the defendant by a preponderance of proof; to which he cites many authorities. He applies this rule to all facts set up by the defendant which do not traverse any averment of the indictment. Kent v. People, 8 Colo. 563. § 423. Prejudicial Theories Regarding this Defense.We have met with some dicta to the effect that if this defense of alibi turns out to be untrue it amounts to a conviction. Wills, Circ. Ev. 92, citing Justice Daly in Rex v. Killan, 20 How. St. Tr. 1085. "But," says Mr. Wills, "it must not be overlooked that such is the weakness of human nature, there have been cases where innocence, under the alarm of menacing appearances, has fatally committed itself by the simulation of facts for the purpose of evading the force of circumstances of apparent suspicion. When the defense of an alibi fails, it is generally on the ground that the witnesses are disbelieved and the story considered to be a fabrication, and from the facility with which it may be fabricated it is commonly entertained with suspicion and sometimes, per haps, unjustly so." As before stated the evidence of an alibi is either true or false. If true it should acquit the defendant. If false, the introduction of it, and the attempt to procure an acquittal by it, constitutes a circumstance against him. The introduction of false or fabricated evidence in a defense is always regarded as an inferential admission of guilt, although not of a conclusive character. But to be entitled to any force, as it is only circumstantial and collateral to the main issue, it should be established beyond all question, that the party has been guilty of producing false and fabricated evidence. If this is doubtful no weight should be given to it. State v. Ward, 61 Vt. 153. "It must be admitted," says Sir Michael Foster in his Crown Law, 368, "that mere alibi evidence lieth under a great and general prejudice and ought to be heard with uncommon caution; but if it be founded in truth it is the best negative evidence that can be offered; it is really positive evidence which in the nature of things necessarily implieth a negative and in many cases it is the only evidence that an innocent man can offer." In Briceland v. Com. 74 Pa. 469, the supreme court of Pennsylvania carefully considered this question and says: "When a defense rests on proof of an alibi, it must cover the time when the offense is shown to have been committed, so as to preclude the possibility of the prisoner's presence at the place of the murder. Although the prisoner makes no admission of guilt by setting up an alibi, yet clearly the value of the defense consists in showing that he was absent from the place where the deed was |