dissenting:
I cannot agree with the conclusion concerning the alibi. The substance of a similar instruction was held bad in the case of Wisdom v. People, 11 Colo. 170. The fact that the portion condemned in that case is'preceded in this by certain declarations as to when an alibi is entitled to consideration, etc., in my "opinion, does not relieve it of the objectionable features complained of, and while it is stated in the former case that the language used might be susceptible to two constructions, it is clear to my mind that to the ordinary juror it means that the defendant must establish to the satisfacion of .the jury that it was impossible for him to have committed the crime, that is that the language complained of was intended to relate to the sufficiency of. the proof of- the alibi, which it is conceded is not the law and I do not think that the portion preceding that complained of or any other of the instructions, relieves it of this objectionable feature.