October 14, 1926. The opinion of the Court was delivered by The defendants were convicted for being present at and setting fire to an unoccupied dwelling house, the property of Charlie McGhee, which building was subject to the lien of a certain mortgage given by Charlie McGhee to the Enterprise Building Loan Association of Camden on the ____ day of ____, 19 — and which building was covered by a certain fire insurance policy issued by the Commercial Union Assurance Company, Limited, against the form of the statute in such case made and provided and against the peace and dignity of the State. The defendants at the trial pleaded not guilty, and interposed a plea of "alibi" to the charge set forth in the indictment.
The Court does not deem it necessary to consider more than the fourteenth exception, which is as follows:
"That the Circuit Judge erred as a matter of law in charging the jury that alibi was an affimative defense and had to be proven by the preponderance of evidence, whereas he should have charged that alibi was not an affirmative defense but was merely a defense interposed to the charge of the State negating the idea that the defendant was present *Page 260 at the time of the alleged offense, it being respectfully submitted further that the only affirmative defenses are those which acknowledge the crime and plead avoidance or justification in connection therewith."
The rule heretofore announced respecting the defense of alibi has been in substance as follows: The State must prove beyond a reasonable doubt that the defendant is guilty, and, if involved in a crime where his actual presence is a necessary element, must prove that said defendant was at the place, and at the time, alleged in the indictment.
As stated above, the State must show the presence of the defendant beyond a reasonable doubt, and if on all the evidence in the case the jury has a reasonable doubt that the defendant was at the place, and at the time, alleged in the indictment, in person, then the jury must solve this doubt in favor of the defendant and must acquit.
It appears to the Court that this is the logical statement of the rule on the subject. The further statement found in the cases heretofore, that alibi is an affirmative defense and must be proven by the party on trial by the greater weight of the evidence, is illogical, lays down a rule, in part at least, inconsistent with the rule above stated, and is calculated to confuse the jury. In other words, if the defendant puts up testimony that will raise a reasonable doubt in the minds of the jury, why confuse the matter further by going ahead and stating that alibi is an affirmative defense and must be proven by the greater weight of the evidence? There can be no rational adjustment of these two statements so that they may be made to work in harmony.
The Court is satisfied that the opinion of Mr. Justice Cothran in State v. Des Champs, 134 S.C. 179;131 S.E., 420, holding that the defense of alibi is not an affirmative defense, correctly sets forth the law, and hereby adopts *Page 261 that opinion in this case, with the exception of the first paragraph thereof.
It is the judgment of this Court that the judgment of the lower Court be reversed and the case remanded for a new trial.
MESSRS. JUSTICES WATTS, COTHRAN, BLEASE, and STABLER, concur.
MR. CHIEF JUSTICE GARY did not participate.