I am of opinion that the court erred not only in the instruction which it gave upon the subject of alibi, but as well in the instruction asked by defendant which it refused to give. The defendant’s whole case rested upon an alibi. If the law upon this subject was improperly placed before the jury the injury which thereby resulted to defendant certainly entitles him to a new trial.
The defendant asked the court to charge the jury as follows: “An alibi simply means that the accused was at another place at the time of the commission of the crime, and therefore could not have committed it; and I instruct you that this defense is *332as legitimate and proper as any other defense. All the evidence bearing upon this defense should be carefully considered by you. If the testimony on this subject, considered with all the other evidence in the case, is sufficient to raise a doubt in your mind as to the guilt of the defendant, you should acquit him. The accused is not required to prove the defense of an alibi beyond a reasonable doubt, or even by a preponderance of evidence. It is sufficient if the evidence upon that point raises a doubt of his presence at the time and place of the commission of the crime charged, and, if it has done so, he is entitled to an acquittal. The attempt of the accused to prove an alibi does not shift the burden of proof from the state, but the state is bound to prove his presence beyond a reasonable doubt.
As applied to the facts in this case, the foregoing instruction is unimpeachable in its law, unless it be said that the failure to qualify “a doubt” by the adjective “reasonable” justified the court in refusing to give it. But I think the court was not justified, for the instructions are to be construed together, and elsewhere the court had in precise language told the jury “that the doubt which acquits a defendant on a trial on a charge of crime must be a reasonable doubt in the sense mentioned and no other.” But if it shall be conceded that the court was justified in refusing to give the offered instruction for the indicated reason, it will be found even more difficult to uphold the instruction which the court actually did give. That instruction is as follows: “One of the defenses interposed by the defendant in this case is what is known in law as an alibi. An alibi in law simply means that the defendant was not there; or, to state it more definitely, a defendant who sets up an alibi shows such a state of facts surrounding his whereabouts as to the particular time the crime was committed as would make it practically improbable or impossible for him to have committed the offense charged. The court instructs you that such a defense is as proper and legitimate, if proved, as any other defense, and all the evidence bearing upon that point, if any, should be considered by you, and if, in view of all the evidence, you have any reasonable doubt as to whether the defendant was in some other place wdien the crime was committed, you should give the defendant the benefit of the doubt. In other words, the defendant *333is not bound or required to prove an alibi beyond a reasonable doubt to entitle him to an acquittal. It is sufficient if the evidence upon that point, if any, raises a reasonable doubt in your minds of his presence at the time and place of the commission of the crime charged.”
By this instruction the jury is first charged that a defendant who “sets up an alibi” is to show such a state of facts touching his whereabouts at the time of the commission of the crime as would make it “practically improbable or impossible” for him to have committed it. Such is not the law. One who is alibi is elsewhere than at the place of the crime at the time of its commission. A defendant who rests his defense upon an alibi is not required by his evidence to make it “practically improbable or impossible” for him to have committed the offense. It is necessary for him only to introduce evidence sufficient to create in the minds of the jurors a reasonable doubt whether or not he was at the scene of the crime at the time of its commission. The vice of the instruction lies in informing the jury that the defendant must prove that he was elsewhere so as to make it practically improbable or impossible for him to have committed the crime. This error is emphasized in the succeeding sentence, where the court informs the jury that the defense of alibi “is as proper and legitimate, if proved, as any other defense.” In People v. Roberts, 122 Cal. 377, a new trial was ordered for an error of the court in instructing the jury upon the question of alibi that “when satisfactorily proven it is a good defense in law.” Herein is a clear declaration that it is incumbent upon the defendant to prove his presence alibi. Again, the court declared that if the jury had “any reasonable doubt as to whether the defendant was in some other place when the crime was committed” the defendant should receive the benefit of the doubt, but here there is an entire misconception of the point to which the reasonable doubt should be directed. If a man charged with the commission of a crime in San Francisco should offer evidence under an alibi that he was in New York, the jury might entertain a reasonable doubt whether or not he was in New York, or more than that, they might positively believe that he was not in New York, but before they could convict him they should be satisfied beyond a reasonable doubt that *334he was in San Francisco; or if—phrasing it otherwise—from all the evidence they did entertain a reasonable doubt whether or not he was in San Francisco at the time of the commission of the crime, the prosecution would have failed to establish their case with the certainty required, and the defendant would be entitled to an acquittal. This proposition is declared in the last sentence of the instruction, but the instruction itself is conflicting and contradictory in its declarations, for the jury were as justified in believing from it that the defendant must prove that he was elsewhere as they were in believing that the law required only that the defendant’s evidence should create in their minds a reasonable doubt. It needs no citation of authority to the point that contradictory and conflicting instructions upon the same proposition are prejudicially erroneous, and for this reason I think the defendant is entitled to a new trial.
Still further, the instruction “that the. witness ascertained or appearing to be willfully false in one part of his testimony as to the truth or falsity of a given proposition of fact is to be distrusted in other parts,” is erroneous and misleading. It is not the “appearance” of giving false testimony; it is the belief that false testimony has been given which invokes and excites distrust and caution. Moreover, as given, the instruction omits the very important element that the willful, false testimony must be given upon a material matter. (People v. Plyer, 121 Cal. 160.)
Temple, J., and Beatty, C. J., concurred.
Rehearing denied.