March 7, 1911. The opinion of the Court was delivered by The defendant was convicted of assault and battery with intent to kill. The only assignment of error appears in the following exception: "That his Honor, the presiding Judge, erred in charging the jury that an alibi is an affirmative defense and as such has to be established by the greater weight of the evidence, when he should have charged that an alibi is a negative defense and in order *Page 80 to convict the State has to establish the guilt of the defendant beyond a reasonable doubt."
The defense of alibi is an affirmative one and must be proved by the preponderance of the evidence. It is true that the defendant is entitled to the benefit of any reasonable doubt as to whether he has proved such defense by the preponderance of the evidence. The Circuit Judge complied with the law by charging not only that the defendant must establish his alibi by the preponderance of the evidence, but also that he was entitled to the benefit of any reasonable doubt as to any of the material allegations of the indictment.State v. Anderson, 59 S.C. 229, 37 S.E. 836; State v. Gadsden,70 S.C. 430, 50 S.E. 16.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.