A new trial should be granted in this case.
Defendant requested the following instruction:
"Where the testimony is directly conflicting and both versions, as given to you, cannot be true, and *Page 168 there is reasonable doubt as to which story is true, it is your duty to accept that version which is consistent with the innocence of the defendant."
The instruction was refused and nothing equally informative given. The instruction should have been given. If the testimony supporting an alibi accomplished no more than to create a reasonable doubt, defendant was entitled to acquittal. People v. Marvill, 236 Mich. 595; People v. Miller, 250 Mich. 72. The court gave the usual instruction, relative to presumption of innocence and the burden of establishing defendant's guilt beyond a reasonable doubt, but did not mention the claimedalibi, or the effect of testimony in support thereof if it created no more than a reasonable doubt. The requested instruction stated a familiar principle of law involving a substantial right of defendant and not met in this instance by the general instruction given. The evidence, supporting defendant's alibi, and the improbabilities disclosed by the testimony of the woman made the requested instruction peculiarly applicable.
The charge here involved is one easily made, if mere opportunity to commit the offense is afforded, and it is hard to disprove unless an alibi, supported by credible testimony, is accorded serious consideration or the testimony of the alleged victim discloses improbabilities. It is claimed that the assault was made during an intermission at a Saturday night dance. Several persons present at the dance testified that defendant did not leave the dance hall during the intermission. The woman was of mature years and we may assume possessed ordinary instincts and sensibilities. She claims that defendant, under pretense of wanting to talk with her privately, induced her to enter his automobile *Page 169 and then drove away from the dance hall, and, alongside of the public road, threw her to the ground, and, while he was trying to force her and had struck her in the face, another automobile came along and she made no outcry because she feared that the occupants might be intoxicated. After the alleged assault she again entered his automobile, noted the time of night by her watch, and, upon renewal of his solicitation, she got out and then got in the automobile again and returned with him to the dance hall, where she showed a bruise On her face to a girl friend and later went home, and the next day, and for the first, told the hired man of the assault and asked him to go with her to look up evidence in an intended suit against defendant for damages. Later she went to one of the attorneys, now representing defendant, and he very properly sent her to the prosecuting attorney. At the trial this attorney was subjected to some unmerited criticism harmful to defendant.
The conviction should be reversed, and a new trial granted.
BUTZEL, C.J., and CLARK, McDONALD, and POTTER, JJ., concurred with WIEST, J.