Defendant was convicted of the crime of robbery in the first degree and sentenced to a state prison for a term of not less than ten nor more than fifteen years. The evidence for the prosecution consisted of the testimony of the victim of the alleged robbery and of two eye witnesses, all of whom identified the defendant as the man who had committed the robbery on August 27, 1937 between 10:30 and 11:00 A.M. The only defense witness was the mother of defendant. The substance of her testimony was that during 1937, the defendant had worked in her candy store between 6:00 A.M. and noon, every day. On cross-examination the mother conceded that defendant may have taken a week off to go somewhere. Concerning this testimony of defendant's mother, the court charged the jury: "The defendant further states through the testimony of his mother that he was busy there in the candy store in the month of August, 1937. *Page 388
"Of course, as I told you before, alibi is a word that means elsewhere. It is the best defense an honest man can have — an honest man. If the alibi is false you may take the falsity of the alibi on the question of the defendant's guilt. Then, of course,if you reject the alibi, you naturally, logically, accept thetestimony of the State's witnesses."
Defendant says that the italicized language in the above quotation from the charge is an erroneous statement of the law, so prejudicial to defendant's rights as to require reversal. We find in the authorities cited by the District Attorney no justification whatever for such an instruction to a jury. The jury here was told that, if it should disbelieve the testimony of the defense witness that defendant was busy at his work every day at the hour of crime, then the jury should "naturally, logically," accept the testimony of the State's witnesses identifying the defendant as the robber. Clearly this was error, and serious error. This court has many times discussed the defense of alibi. It has held that it is not essential that alibi be proven beyond a reasonable doubt (People v. Vaccaro,288 N.Y. 170, 173; People v. Elmore, 277 N.Y. 397), that the alibi testimony need not be such as to show that it would have been impossible for the defendant to have committed the crime charged (People v. Barbato, 254 N.Y. 170; People v.Perry, 277 N.Y. 460), that alibi is not an "exculpatory defense upon which the defendant has the burden of proof," but is evidence which may tend to cast doubt into the minds of the jury as to whether the defendant is guilty. (People v. Russell,266 N.Y. 147, 152). In People v. Russell (supra) the Trial Court had told the jury in effect that if it did not believe defendant's alibi witnesses, the jury might consider the alibi "defense" a fabrication, a corroboration of the testimony of the People's witnesses and an admission of the truth of their testimony. If, said this court in that case (266 N.Y. at page 153), the jury did choose to accept as true the prosecution's evidence, then rejection of the alibi testimony would necessarily result, but not vice versa. Disbelief of the defendant's witnesses could not, it was said, be corroboration of the People's witnesses. Much less could it be, as the charge says here, that the rejection of defendant's proof spells acceptance of the People's proof. Jurors in a case like this, may, for any one or more of a variety of reasons, choose to disbelieve *Page 389 the alibi evidence. As triers of the facts they may doubt the accuracy of the witness' memory, or may note the confusion or hesitation in her speech, or may consider the testimony inherently improbable or the witness herself generally unworthy of belief. If rejection of alibi testimony, for those or other reasons, must lead "naturally" and "logically" to an acceptance of the prosecution's proof, then a defendant will have more to lose than to gain by proffering such evidence, except in the unusual case where the alibi proof is in itself so completely conclusive as to brook no disbelief. The charge above quoted can well mean (if indeed it is susceptible of any other meaning) that disbelief of the mother's story leaves to the jury only the automatic and imperative duty of announcing a verdict of "guilty."
We have not failed to note the language that immediately followed, in the court's charge in this case, the above quoted except. The court went on to say "Never forget that there is no burden upon the defendant to prove his innocence — never." Correct though this and other similar statements of law in the charge undoubtedly were, they were not sufficient, in our opinion, to overcome the error of the direct and specific command that acceptance of one side's incriminating testimony must result at once from rejection of the other side's alibi testimony. The only real issue in this case was as to the accuracy of the identification testimony. When the jury were told that this issue might be decided by determining whether defendant's mother was falsifying or mistaken, the error was not one to be overlooked.
Claim is made that no proper exception to the erroneous instruction was taken. When asked for his exceptions or requests, defendant's counsel said: "* * * I also take exception to your Honor's remarks about the mother testifying." The only "remarks about the mother testifying" are in that part of the charge hereinabove quoted. We think the exception was sufficiently stated. Defense counsel, finding it necessary to protect his client's rights as against a prejudicial statement in the charge, should not be required to give added emphasis to the erroneous matter by repeating it at length.
The judgments should be reversed and a new trial ordered. *Page 390