(after stating the facts). The court did not err in refusing to give instruction No. 1, requested by appellant. The presumption of innocence attends every defendant charged with any crime, and continues until it is overcome by the evidence; and the instruction tells the jury that this presumption of innocence is sufficient to require a verdict of not guilty in any doubtful case, but does not tell the jury when a case is doubtful. A case in which there is any doubt might be a doubtful case, but the rule is universal that a mere doubt does not authorize a verdict of acquittal. The doubt must be a reasonable one, because there are but few cases depending upon human testimony which is not susceptible to a doubt of some' kind. The evidence must convince the jury of the defendant’s guilt beyond a reasonable doubt, and if it does this, it is sufficient; but more than that is not required.
The law upon the question of the burden of proof in the defense of an alibi is nowhere stated with more clearness than in the opinion in the case, of Commonwealth v. Choate, 105 Mass. 456, wherein, the defense of an alibi having been interposed, the court had charged the jury that, ‘‘Where the defendant sought to establish the fact that he was at a particular place at any given time, and wished them to take it as an affirmative fact proved, the burden of proof was upon him, and if he failed in maintaining that burden, the jury could not consider it as a fact proved in the case; that the burden, however, was upon the Government to show that the defendant was present at the time of the commission of the offense, and as bearing upon that question the jury were to consider all the evidence offered by the defendant tending to prove an alibi, and if upon all the evidence the jury entertained a reasonable doubt as to the presence of the defendant at the fire, that they were to acquit. ’ ’ The court, upon approving the instruction, said ‘ ‘ The substance of the whole ruling was that if the evidence of the defendant, which tended to prove an alibi, was such, that, taken together with the other evidence, the jury were left in reasonable doubt as to whether the defendant was present at the alleged fire, they should acquit him. ’ ’
This statement of the law has been expressly approved by this court in the cases of Blankenship v. State, 55 Ark. 248; Ware v. State, 59 Ark. 379; Rayburn v. State, 69 Ark. 177.
The court told the jury that the burden of the whole case was on the State to show that the defendant was present at the time and place of the commission of the crime; but the court also told the jury that the burden was upon the appellant to show by a preponderance of the evidence that he was not there, and the jury was not told, as it should have been, that, although the burden of establishing this defense as an affirmative fact was upon the appellant, yet, if the evidence which he had offered in support of that defense, taken in connection with all the other evidence in the case, was sufficient to raise a reasonable doubt of the defendant’s guilt, that the jury-should acquit. This was substantially the instruction which the appellant asked the court to give, and which we think the court should have given, to make its meaning entirely plain. And under the circumstances we do not think the instruction given by the court, which concluded with the direction to the jury that, if they entertained a reasonable doubt of the guilt of the appellant to acquit him, would cure the error committed in failing to give the instruction requested by appellant.
The jury may have been in doubt as to their duty to consider the proof of an alibi at all, unless they were able to find that it had been established by the preponderance of the evidence, and this doubt and uncertainty may have been accentuated by the court’s permission to the prosecuting attorney to state in his closing argument that the burden was on the defendant to show by a preponderance of the evidence that he was not present when the offense was committed. Under any circumstances, a defendant is entitled to an acquittal, if the jury is not convinced of his guilt beyond a reasonable doubt, and the instruction of the court should leave the jury in no doubt as to its duty when such a doubt is entertained. Wells v. State, 102 Ark. 630.
For the reasons indicated, the judgment of the court below is reversed and the cause remanded for a new trial.