This conviction is for the theft of a horse, the property of A. H. Boales. The evidence in the case is such as to present two defenses:
1. That the witnesses for the State may have been mistaken in the identity of the defendant as the person who traded the horse to *309Louis Hopf, and who was seen in the possession of the horse. This evidence is of such a character as to present this issue, considered independently of the testimony .which tends to prove an alibi.
2. An alibi. There is strong testimony in the record in support of this defense, and the learned judge below, in view of this fact, submitted to the jury the following instructions upon this phase of the case: “. . . 3. If the jury believe the alibi which has been set up as a defense in this case has been proven, or if they have a reasonable doubt as to the fact of whether said alibi has been proven, they will give the defendant the benefit of it and acquit him. When an alibi is relied upon as a defense, it rests on the defendant to prove it to the extent of raising a reasonable doubt as to whether the accused is the person who committed the offense charged.”
To this charge the defendant objected, and saved his exceptions by bill. If there is no proof of an alibi adduced upon the trial, the case stands upon the other evidence, whether introduced by the State or the defendant. If there be evidence tending to prove an alibi, the case is to be tried upon all of the evidence,— that for the State as well as that for the defendant. But in no case is the burden upon the defendant. Proof tending to establish an alibi is an attack upon the evidence which tends to prove guilt. An alibi is not an affirmative proposition, made by the defendant, with the burden of proof resting upon him, but evidence in its support, depending upon its cogency, disproves, weakens or questions that which tends to prove guilt. Such evidence is a direct attack upon guilt, and, if of sufficient strength and cogency, may affirmatively disprove guilt. But if its effect is such, whether introduced by the State or the defendant, as to create a reasonable doubt as to the guilt of the defendant, it should prevail and work an acquittal. (Walker v. The State, 42 Texas, 360.)
If the State, by competent evidence, has established the guilt of the defendant beyond a reasonable doubt, and there is no evidence of alibi, certainly he should be convicted, and, if believed by the jury, a conviction would follow; and the case being closed without such evidence, alibi would not be in the case. And in such case, if there be such evidence at the command of the defendant, it would be admissible for him to. introduce it. Under such a state of case, in one sense the burden would be upon the defendant to make such proof. With this, however, the trial judge has nothing to do, because, there being no such proof, alibi would not be in the case, and hence the court should refrain from charging upon matters not authorized by the record.
*310We cannot agree with the learned judge in his definition of alibi. lie defines alibi thus: “ An alibi is when an offense has been proven to have been committed upon a certain date, and at a certain place, and the evidence shows that at that time the accused was at some other place than that where the testimony shows the offense to have been committed, so remote from it as that it would have been impossible for him to have been the person who committed the offense; and hence if the jury have a reasonable doubt as to whether the defendant was the person who was testified to have been seen in Comfort with the alleged stolen horse, or who was testified to as having traded the horse to Hopf, you will acquit.”
Mr. Bouvier defines an alibi as follows: “ Presence in another place than that described.” . . . “When a person charged with a crime proves that he was, at the time alleged, in a different place from that in which it was committed, he is said to prove an alibi; the effect of which is to lay a foundation for the necessary inference that he could not have committed it.”
In that part of the charge of the court defining alibi, the jury are told that, to constitute an alibi, the offense must first have been proven to have been committed upon a certain date and at a certain place. .This charge proceeds upon the idea that the State has proved that the offense was committed at a certain time and place, and that when this is done, and not before, evidence that the defendant was at some other place is for the purpose of proving an alibi.
How, let us suppose that the State has not proved that the offense was committed by the defendant at any time or place, and yet the defendant adduces evidence tending to show that he was not at the place of the offense at that time, but was elsewhere. Under the definition of alibi given by the learned judge, this would be a very dangerous blunder; for the jury would most certainly infer from the charge that the State had proved its case, and, unless they should believe the evidence tending to prove the alibi, they would very likely convict, notwithstanding the evidence of the State, when considered separate and distinct from that which tends to prove the alibi, may not be sufficient to convict.
We will not discuss the questions raised upon the motion for new trial, based upon the action of the court in overruling the application for a continuance. This question will be eliminated upon another trial. For .the error in the charge of the court, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered May 27, 1885.]