(dissenting).
A careful reading of the record in this case has convinced me that the failure to give the requested alibi instruction was harmless error. The rationale expressed in Ferguson for the giving of such an instruction is to remind the jury of the main factual disputes raised during the trial and to prevent the jury from erroneously believing that the defendant has the burden of proving an alibi. In the subject case the entire thrust of the Johnson and Warner defense was on the alleged alibi so that nothing would have been accomplished by additionally reminding the jury of that main factual dispute. This was the only factual dispute present in the case (although there was a legal question presented as to the requirements of rape as far as consent is concerned).
With reference to the second purpose for such an instruction, to prevent the jury from erroneously believing that the defendant has the burden of proving alibi, a clear instruction on burden of proof was given and there was no reference or implication either in the instructions or in the *526arguments by counsel that the defendant has the burden of proving alibi.
If I could find that any substantial rights of the defendants had been affected I would certainly join with the majority in this case. The testimony which included highly detailed descriptions of the assailants and their vehicle, confirmed in many respects by other evidence, indicates that the error in failing to give the alibi instruction did not affect substantial rights. Accordingly, under the provisions of Alaska Criminal Rule 471 the error should be disregarded. To do otherwise requires either a dismissal or the imposition of the heavy burden and travail upon the state and the complaining witness of another retrial, due solely to a technicality not affecting substantial rights.
.Alaska Criminal Rule 47 provides in pertinent part:
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
Since no constitutional right of the defendants is involved it is unnecessary to determine that the error was harmless beyond a reasonable doubt as required in cases of federal constitutional errors. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 E.Ed.2d 705 (1967) ; contrast Noffke v. State, 422 P.2d 102, 105 (Alaska 1967) wherein this court stated:
A violation of the mandate of Crim. R. 38 is not prejudicial error unless such nonadherence has affected a substantial right of the defendant. (Emphasis added.)