In the eighth paragraph of the charge the jury were instructed that 16 where the defendant relies upon proof of an alibi, that is proof that he was at some other place at the time the offense (if any) was committed, the burden of proof as to that fact is on the defendant, and he is required to establish it by a preponderance of evidence; but, if the evidence adduced raises a reasonable doubt in the minds of the jury, the defendant is entitled to the benefit of the doubt.” . This charge was not excepted to, but in the motion for a new trial it is claimed that it injured the rights of defendant. A similar charge by the same judge in Johnson v. The State, ante page 368, was held fatally defective.
Unless requested to do so, the trial judge is not required to charge specially upon the defense of alibi. It is ordinarily a defense sufficiently embraced in the general charge that a defendant is by law presumed innocent until his guilt is established by competent evidence beyond a reasonable doubt. (Davis v. *405The State, 14 Texas Ct. App., 645; McAfee v. The State, 17 Texas Ct. App., 131.) In The State v. Reed, 62 Iowa, 40, it is held that alibi is not a defense within the accurate meaning of that word, but a mere fact shown in rebuttal of the State’s evidence, and it does not, therefore, demand a specific instruction from the court. With us the practice has been, where the only defense shown is an alibi, to recognize the propriety of a charge upon the law relating to such evidence, (Willson’s Crim. Forms, Nos. 712, 713, p. 333, and note; Hunnicutt v. The State, 18 Texas Ct. App., 500), and where an appropriate charge upon the subject has been requested and refused, or an exception has been taken to a charge for omission in this respect, such objections have invariably been held sufficient grounds for reversal if the facts of the case made such a charge applicable. In the case before us the defensive evidence mainly went to establish an alibi.
The charge of the court was unquestionably erroneous. The burden of proof is not upon a defendant in a criminal case to establish an alibi by a preponderance of evidence, if that is one of his defenses relied upon. Such defense is not a special one, nor is it in its nature an independent exculpatory fact. “If the evidence of an alibi produces upon the minds of the jury a reasonable doubt concerning the truth of the facts constituting the guilt of the defendant affirmed in the indictment, it would be sufficient to require an acquittal. Such a doubt might arise in the minds of the jury from the evidence tending to prove the alibi, and if so, that would be sufficient to render the evidence available to rebut the affirmative evidence for the State, without their minds ever having arrived at a conviction to the degree of a moral certainty as to the truth of the alibi.” (Walker v. The State, 42 Texas, 360.)
Again: “When no special plea or independent exculpatory fact is relied on by the accused, and he confines his defense to a traverse of the issues tendered in the- indictment, the burden of proof never devolves upon him.” (Dubose v. The State, 10 Texas Ct. App., 231, and authority cited; Jones v. The State, 13 Texas Ct. App., 1; Thomas v. The State, 14 Texas Ct. App., 200.) We are of opinion the instruction as given, and under the circumstances shown by the evidence, was calculated injuriously to affect the rights of the defendant, and that the error could be availed of on a motion for new trial. (Johnson v. The State, ante p. 368.)
Rone of the stolen goods were found in possession of defend*406ant. A clock which was taken at the time of the burglary was found in the house of one Mike Falk some weeks after the crime was committed, and which clock Falk claimed to have bought of defendant. In the seventh paragraph of the charge the jury were instructed that “the possession of property recently stolen, when the possession is unexplained, is an evidence of guilt,” etc. This was error. Whilst it is true, as a legal proposition, that unexplained possession of property recently stolen is prima facie evidence of theft, and whilst the law would from such circumstances authorize an inference and presumption of guilt, such an inference and presumption is not a mere legal one but is one of fact to be found by the jury. And the court should, in no instance, charge the conclusiveness of such presumption or inference, but should submit them as facts to be found "by the jury, for, at most, they are but circumstances only from which guilt is inferred, and not positive proof establishing it. (Thomas v. The State, 43 Texas, 658; Perry v. The State, 41 Texas, 483; Faulkner v. The State, 15 Texas Ct. App., 115; Lehman v. The State, 18 Texas Ct. App., 174; Schultz v. The State, 20 Texas Ct. App., 309.)
Opinion delivered May 25, 1886.For errors in the charge of the court, the judgment is reversed and the cause remanded.
Reversed ¡and remanded.