done, at the very time the evidence of the commonwealth tends to fix its commission upon him; for, if it be possible that he could have been at both places, the proof of the alibi is valueless." § 424. Shifting Nature of the Burden of Proof.-" In an indictment for crime, the defendant, ordinarily, is entitled to have the whole case left to the jury, upon the evidence of both sides, and if upon a consideration of all such evidence, every reasonable doubt be not removed, the jury should acquit. Therefore in a case of larceny, an instruction to the jury that the burden of proof to show the guilt of the prisoner is upon the state, but when the state has made out a prima facie case, and the prisoner attempts to set up an alibi, the burden of proof is shifted; and if the defense fail to establish the alibi to the satisfaction of the jury, they must find the prisoner guilty, is erroneous." $425. Not Bound to Prove beyond Reasonable Doubt.— In Tennessee, the law has been laid down in substantially the same terms; that where the charge was "that the proof necessary to establish the alibi must be as certain as that by which the state would have to establish the guilt of the accused," this was held to be erroneous, because its effect was to exclude the prisoner from the benefit of any reasonable doubt as to his guilt, arising from the proof touching the alibi, in connection with other proof in the cause; and further that the prisoner was not bound to prove an alibi beyond a reasonable doubt. Chappel v. State, 7 Coldw. 92. "Evidence of an alibi," says the supreme court of Illinois (Miller v. People, 39 Ill. 457) "whether sufficient to render the guilt of the defendant impossible or only improbable, is proper for the jury, and he is entitled to any reasonable doubt that may entertain upon this point; and if he attempts to prove an alibi, and fails to do so, it should have no greater weight to convince them of his guilt, than a failure to prove any other important item of defense, and should not, generally speaking, operate to his prejudice.” In similar vein is a decision of the South Carolina court. We can see no injustice in requiring matters of defense to be established according to the ordinary rule of evidence—that of a "preponderance," which is the lowest degree capable of producing conviction. If a party charged with crime pleads a particular defense, such as insanity or an alibi (or self-defense) the fact must be proved as it is alleged by him. Preponderance of evidence is the lowest degree capable of producing conviction. Less cannot be required of one whose duty it is to establish a particular fact, subject, of course, to the general rule, that a party charged with crime is entitled to the benefit of all reasonable doubts. State v. Paulk, 18 S. C. 515; State v. Bundy, 24 S. C. 439. State v. Nance, 25 S. C. 173. The defendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal. It is sufficient if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged. McLain v. State, 18 Neb. 154. § 426. Views of Mr. Justice Best.-The story of Susannah and the Elders in the Apocrypha affords a very early and most admirable example. The two false witnesses were examined out of the hearing of each other; on being asked under what sort of tree the criminal act was done, the first said "a mastick tree" and the other "a holm tree." The judgment of Lord Stowell also in Evans v. Evans, 1 Hagg. Consist. Rep. 105, shows how a supposed transaction may be disproved, by its inconsistency with surrounding circumstances. "What had you for supper?" says a modern jurist. 2 Bentham, Judicial Ev. 9. "To the merits of the cause, the contents of the supper were in themselves altogether irrelevant and indifferent. But if, in speaking of a supper given on an important or recent occasion, six persons, all supposed to be present, give a different bill of fare, the contrariety affords evidence pretty satisfactory, though but of the circumstantial kind, that at least some of them were not there." The most usual application of this is in detecting fabricated alibis. These seldom succeed if the witnesses are skillfully cross-examined out of the hearing of each other; especially as courts and juries are aware that a false alibi is a favorite defense with guilty persons, and consequently listen with suspicion even to a true one. 2 Best, Ev. § 655. 427. The General Rule.-The rule supported by the weight of authority is, that while the burden of proof to establish an alibi is on the defendant, yet, even though the evidence may fall short of establishing the plea, it may be considered by the jury with the entire evidence in determining whether a reasonable doubt of defendant's guilt has been raised. People v. Fong Ah Sing, 64 Cal. 253; Kaufman v. State, 49 Ind. 248; Howard v. State, 50 Ind. 190; Com. v. Choate, 105 Mass. 451; State v. Reitz, 83 N. C. 634; Walters v. State, 39 Ohio St. 215; Watson v. Com. 95 Pa. 418; State v. Hardin, 46 Iowa, 623, 26 Am. Rep. 174; State v. Watson, 7 S. C. 63. But see Ware v. State, 67 Ga. 349; Bryan v. State, 74 Ga. 393. Rapalje, Crim. Proc. § 286. $428. Miscellaneous Decisions.-The defense of alibi is "not one requiring that the evidence given in support of it should be scrutinized otherwise or differently from that given in support of any other issue in the cause;" and we may add that if trial courts will give an instruction to this effect the ends of justice will be equally as well subserved, and the administration of the laws less embarrassed. People v. Lattimore, 86 Cal. 403. To establish an alibi the range of evidence in respect to time and place must be such as reasonably to exclude the possibility of the presence of the accused. Wade v. State, 65 Ga. 756; Com v. Seybert, 4 Kulp, 4. An alibi need not be proved beyond reasonable doubt; it is established by a preponderance of evidence. Walters v. State, 39 Ohio St. 215. Evidence tending to establish an alibi, even though not deemed by the jury sufficient for that purpose, may be considered by them, together with the other evidence in the cause, in determining whether guilt has been shown beyond a reasonable doubt. Watson v. Com. 95 Pa. 418. If the jury should regard the evidence of alibi as preponderating, their belief would be that the defendant was where he could not have committed the crime, and having reached that conclusion an acquittal should follow, of course. State v. McCracken, 66 Iowa, 569. Where the evidence adduced to prove an alibi is sufficient, considered with the other evidence, to create in the minds of the jury a reasonable doubt as to defendant's guilt, he is entitled to an acquittal. Blankenship v. State, 55 Ark. 244. In the case of the People v. Larned, 7 N. Y. 448, the presiding judge charged the jury: "That the defense interposed by the prisoner was what was in law denominated an alibi, and if the three witnesses called by him to sustain it had testified truly, the prisoner should be acquitted; that it was however insisted by the prosecution that the defense was a fabricated one and sustained by perjury; that this issue the jury were to determine; that it was undoubtedly true that the defense of an alibi is not unfrequently the felon's plea; that when a prisoner finds himself surrounded by facts and circumstances which threaten to overwhelm him and establish his guilt, he not unfrequently resorts to this defense and seeks to maintain it by perjured witnesses; and that it was the remark of an eminent judge in England that 'in his opinion, more perjury had been committed in defenses of this description than in all other defenses interposed in criminal trials." " 44 CHAPTER L. COMPULSORY EXAMINATION OF PERSON OR PAPER. § 429. Right to Examine Generally Denied in Criminal Cases. 432. The Rule in Civil Actions for Damages. 433. Compulsory Production of Paper. § 429. Right to Examine Generally Denied in Criminal Cases. In criminal trials, whether the defendant can be compelled by order of the court, against his consent, to submit to a physical examination, there is a difference of opinion. It has been supposed that it could not be done, because this compels the accused to produce evidence against himself, and violate a fundamental principle, as was held in a English custom-house case, where a motion to compel the production of books was denied. A forcible examination of a female prisoner, under an oath of a coroner, by physicians, to ascertain if she had been pregnant and recently delivered of a child, was a violation of the Constitution. But we find on this subject that the authorities are in great conflict, especially upon questions of identity of the prisoner, when that is the issue, and it becomes necessary to identify him by marks or scars on his person. We find a case decided in Nevada in 1879, State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530, in which the defendant was indicted for murder, and the question of his identity became important. A witness stated that he knew the defendant, and that he had tattoo marks (a female head and bust) on his right fore-arm. Defendant was compelled by the court, against his protest, to exhibit his arm to the jury and show the marks to them. This was held to be proper, and that it did not violate any constitutional provision, as meaning that no person shall be compelled to testify as a witness against himself; that it was not prejudicial to defendant and was not erroneous. Hawley, J., among many other things, said: "The Constitution means just what a fair and reasonable interpretation of its language imports. No person shall be compelled to be a witness, that is, to testify against himself. To use the common phrase, it 'closes the mouth' of the prisoner. A defendant |