RESPONSE TO PETITION EOR REHEARING'.
The counsel for respondent in this case commences his petition by a statement that it is the general impression of the bar that the opinions of this Court, like the laws of the Medes and *560Persians, are unchangeable, and, therefore, he has but little hopes of success, but will, nevertheless, attempt in plain and unmistakable but respectful language to point out the errors which, in his opinion, the Court has fallen into.
We will say for the benefit of the gentleman and the bar at large that the business before the Court has not been great. That we have had ample time to examine thoroughly all cases submitted to us. We have never failed to examine every authority cited that conflicted, or seemed to conflict, with our views of any case under advisement. We have not only done that, but we have generally examined many more authorities than were cited. Having given a thorough examination to all cases submitted to us, we have not often deemed it necessary to grant rehearings.
Whilst we cannot grant rehearings merely because counsel differ with us in opinion, we certainly shall not take exception to the course of counsel in any fair argument in refutation of the views of the Court.
Counsel complain that the opinion of the Court does them injustice in two particulars :
First — In stating that they did not make a point subsequently urged by the Attorney General.
Second, — In misstating their theory as to certain' points in the case.
With regard to the first point, perhaps it would have been more correct to have said that the point presented by the Attorney General was not parUculcvrly urged by counsel who argued the cause. It is true, as counsel state, that in the third point of their brief they lay down the general proposition that error must be affirmatively shown, and when the whole of the evidence does not purport to be given in the transcript, only those instructions will beheld erroneous which could not, under any circumstances, be otherwise than erroneous and tending to prejudice the defendant. This, as a general assignment of error, would be sufficient to cover the point discussed by the Attorney General.
But there was no attempt, as far as we recollect, in the oral argument, and certainly none in the brief, to apply the general principle to this particular point.
*561It was not claimed, so far as we are aware, that tbe record did not show tbat this was a case in which it was proper that instructions should be giren as to the effect of proving an alibi.
But it was urged, both in the brief and oral argument, that the instructions on the subject of alibi were perfectly correct.
The position was never once taken by the original counsel for respondents, so far as we are aware, that it was immaterial whether those instructions contained the law or not, because of the absence of evidence showing their applicability to this case. It was only the Attorney General who urged and attempted to sustain this proposition.
"We can assure counsel that we did not and do not desire to do them injustice in this or any other respect.
Nor can we copceive how the fact that the Court mentions they did not take an untenable position could be construed as a reflection on the care or ability of counsel. Piad the Court held the point well taken, then indeed the opinion of the Court might to some extent have been considered as a reflection on them. This Court is rather disposed to commend the discretion of counsel in not taking untenable positions.
With regard to the second point complained of by counsel, we will say that we first stated what we supposed their theory to be. We stated the theory in a manner that was at least rational, though not law.
But as we were not perfectly certain that we did state the theory as they wished to be understood, we then stated the gist of their proposition in the very language of the brief. If we misunderstood their proposition, there was their own language to correct us.
They have written a long argument on petition for rehearing, and after reading it over a number of times carefully, we feel unwilling to state what are the legal propositions contained in the petition lest we should inadvertently do counsel injustice.
We will not attempt to answer that which is to us somewhat obscure, but if possible we will put our own views in language that cannot be misunderstood, only referring to a few portions of the petition which can help to elucidate our ideas.
*562In deciding as to the propriety of the instructions in regard to the effect of proving an alibi, we assumed that there was no proof offered to the jury that Waterman was connected with the transaction in any other way than by his presence at the actual scene of the robbery. In our original opinion we pointed out the reasons why we assumed that to be the fact. We think these reasons need not be repeated.
Taking it for granted, then, that the proof against Waterman did tend to prove that he was actually present at the robbery, aiding and assisting therein, but did not tend to show that he was otherwise connected therewith, let us examine the instructions given and refused. Under this state of facts then the Court gave this instruction:
“If in reviewing all the testí/mon/y i/nt/rodMced on the part of the State you are satisfied of the guilt or innocence of the defendants under the rules given you by the Court, you will then consider the defenses set up by the defendants; and in considering that of alibi you will bear in mind that it devolves upon the party urging it to establish the same to your satisfaction by evidence. It is not sufficient to warrant an acquittal that he merely raises a reasonable doubt as to whether the alibi is established; but, as before stated, you must be satisfied of its truth by testimony. If you believe from the testimony that the defendant Waterman at the time alleged was in the city of Virginia, you must acquit him.”
We have italicised part of the instruction to call attention to it. If the instruction means anything which is not absolutely nonsense, it means this: “You will first consider the evidence of the State, and if that, standing alone, produces on your minds a conviction beyond all reasonable doubt of the guilt of the prisoner, you will then consider the evidence given by defendants, and in considering that which tends to prove an alibi, you must bear in mind that it is not sufficient for the defendants, or either of them, to have produced on your minds a reasonable doubt as to whether they were present at the place of robbery, or were at a totally different place when the felony was committed. Reasonable doubt on this subject is not sufficient, there must be a preponderance of evidence tending to establish the alibi. In other words, the evidence which *563the prisoner introduces, tending to show he was in Virginia or Carson, as the ease may be, at the time the offense was committed, must be stronger and less susceptible of doubt than that introduced by the State to show they were not at those cities when the offense was committed, but at a point between the two, where the stage was robbed.”
If it does not mean this, then it means that the jury may believe from the testimony of the State that the prisoners were, beyond a doubt, at the place of robbery at a certain hour, and may also believe from the testimony of the defendants that probcibl/y at the very same moment of time they were at a totally different place. In other words, in order to convict Watenúan you may believe that he could be corporally present at two different places at the same time. This, it appears to us, is utter nonsense.
The instruction refused was this: “ If all the circumstances shown in the case leave it reasonably uncertain whether Waterman was in Virginia, when the robbery was committed, the jury must acquit.”
The petition says, when reduced to plain English, this means: “ The defendant Waterman alleges that at the time of the commission of the robbery he was in Virginia. If he has made sufficient proof to make it reasonably uncertain whether he was in Virginia when the robbery was committed, the jury must acquit.”
We admit the language used by petitioners is equivalent to that of the instruction refused. But, say the counsel, if the instruction had been in this form it would have been erroneous to refuse it. “ If all the circumstances shown in the case leave it reasonably uncertain whether Waterman was at the place of robbery when it was committed.” Now we cannot see the difference between the two. If it was reasonably uncertain whether he was or was not in Virginia it certainly must have been at least equally uncertain whether he was at another place at one and the same time. Eor according to the laws of nature a man cannot be at two places simultaneously.
Suppose the case had been tried where special verdicts are allowed in criminal cases and the verdict had been in this form:
*564“We, the jury, are unanimously of the opinion that the defendant "Waterman was, beyond all reasonable doubt, present at a point about ten miles south of Virginia on the night of the 21st of May, 1865, when the stage was robbed, .and was then aiding and assisting in the robbery as charged in the indictment, and we find the facts so to be. We come to this conclusion from the clear and satisfactory evidence of the prosecution.”
“ On the other hand, the prisoner introduced evidence almost as clear, satisfactory and convincing that he was at Virginia, ten miles distant from the scene of the robbery, when it occurred. There is a very slight shade of difference between the strength of the evidence proving he was at the robbery, and that proving he was at Virginia, though there is a slight balance in favor of the former proposition.”
“Whilst, therefore, the proof of an aUbi is very clear, strong and free from all suspicion of fraud, deception or trick, we cannot say there is a preponderance of testimony proving this defense, unless we may indulge in the theory of a party being at two places at the same time. We find as a fact the defendant has established his alleged alibi by clear, satisfac-toiy, unimpeached and unsuspected, but not preponderating, testimony. With this explanation we leave it to the Cojirt to determine whether the j>risoner should be sentenced.”
Would any Judge pass sentence on a prisoner under such a finding ? If so, we think he would have very little idea of the humanity of the law.
Counsel for respondent, in their petition, lay down these three propositions as containing the. gist of their whole case:
“ First — That when the defendant alleges an alibi the bur-then is cast upon him to prove it — a proposition clearly admitted by this Court in its opinion, and established by the authorities cited in our original brief."
“ Second — That a fact which the defendant must prove, must be established satisfactorily by a preponderance of testimony. To which we again cite all the authorities mentioned by us.
“ Third — That the fact so to be established is not proven by testimony only sufficient to raise a doubt whether such/hci does exist. To which we also cite the same authorities, and *565beg to add that the reverse of the proposition would place one in the ludicrous position of saying that you must not prove a proposition which you must prow”
Let us endeavor to answer these propositions. Proof in civil or criminal cases never amounts to mathematical demonstration. What we call proof is usually documentary evidence or the oral testimony of witnesses, directly declaring certain things which are material to the issue on trial to exist, or to have transpired, or else declaring other things not material in themselves to exist, or to have transpired, from which the Judge or jury may reasonably infer that the material facts do exist or did transpire.
If ten of the most respectable men in any community were to swear positively that they saw A B at a certain place at a certain time, it might not be true that A B was there.
There might have been a mistake as to identity, or some other mistake. Then, in speaking of proof in judicial trials, let it be understood that positive, unmistakable proof is never meant.
Practically, proof may be divided into three classes with regard to its strength or the force of conviction it produces on the tribunal before which it is introduced.
First — -That which establishes a fact beyond all reasonable doubt, but not to an absolute mathematical certainty.
Second — -That which establishes a fact by preponderance of evidence. In other words, render it more probable that the fact does exist than it does not.
■Third — That evidence which renders it probable that a fact may exist, or, in other words, render it reasonably doubtful if it does not exist, but still does not prove the fact by a preponderance of evidence.
It is a rule of law that in criminal cases the 'defendant can only be convicted by evidence of the first class, with this exception to the general rule: Whenever the prosecution establishes a voluntary killing on a trial for murder by proof of the first class, the law presumes malice and dispenses with all proof thereof by the prosecution.
If the defendant attempts to rebut this legal presumption, Courts have generally held that it is not sufficient to raise a *566doubt as to whether the defendant was actuated by malice or an excusable motive in taking life.
But there must be a preponderance of evidence in favor of defendant on this point. He must establish his defense by evidence of the second class, as it regards strength or force of conviction which it produces.
In other words, the body of the crime, the corpus delicti as the lawyers call it, must be established by testimony of the first class.
The motive of the act may be established, in the absence of proof, by a presumption of law. Or, if proof be introduced on the subject pro and con, the defendant must suffer, unless his proof is reasonably adequate to show an excusable motive, and stronger than the prosecution to prove malice.
The defendant must establish his justifiable or excusable motive by evidence of the second class.
But, if the defendant alleges in his defense some fact to exist which is so absolutely inconsistent with the alleged charge that it is physically impossible for both to be true, then, if the prisoner’s testimony, taken with all the other testimony in the case, leaves a reasonable doubt on the mind of the jury whether his inconsistent fact does or does not exist, it necessarily leaves a reasonable doubt as to whether he is or is not guilty.
The true rule is, that a prisoner has only to establish a fact • which is , totally inconsistent with the theory of his guilt by evidence of the third class, as it regards strength and degree of conviction to be produced by that evidence. But let us not be misunderstood on this subject. All the evidence in the case, whether that of the prisoner or the prosecution, must be considered and weighed with all other testimony bearing on the same point.
The prisoner might introduce evidence of an alibi, which taken by itself would produce conviction beyond a reasonable doubt of the truth of his alleged defenses, but which, taken in connection with the other proof, would not raise the slightest presumption of the truth of the alleged alibi. Alone, it would be proof of the first class; in connection with the proof on the other side, it would not reach the third class of proof as we have classified evidence in this opinion, Thus, A is accused *567of murdering B. Tbe proof is very strong that be did kill B, and threw bis body into a river or sea,, from which it has never been recovered. A introduces proof nearly as strong, showing B is now living in some other State or country.
If the jury has strong doubts as to whether B is not alive, could it be possible that they should be clear and without doubt that he was murdered by A ? In these days, when miracles have ceased, such propositions are absurd.
The petition lays down this proposition as an axiom, that 'a fact is not proven by testimony which only raises a doubt as to its existence. Such a proposition only shows that counsel attaches a wrong idea to the term proof; he confounds proof as used in judicial trials with the same word as applied to mathematical demonstrations.
If two respectable men were to swear positively to the existence of a fact, counsel would probably consider it proved. Yet, twenty other men equally reliable, and having as good opportunity of knowing, might swear to the contrary. Then certainly the fact would be left in doubt. So counsel would say of this particular fact, it was at one time proved/ it after-wards turned out it was not proved.
This is a confusion of ideas and terms. Pacts are proved, as that word is used in speaking of civil or criminal trials, by proof more or less conclusive or satisfactory.
If evidence is introduced tending towards the establishment of a fact, it is in some sense proved, though the proof may be very unsatisfactory. It may be proved so as to raise a conviction of its existence beyond a reasonable doubt; to raise a very strong presumption of its existence, or only a slight probability of its existence; raising a reasonable doubt of the existence of a fact is not only proof, but sufficient proof in some cases to influence the judgment of a Court or verdict of a jury.
The authorities cited were all carefully examined before the former opinion was written, except that of Mr. Webster.
The opinion of Chief Justice Murray is not in point, because the motive of parties in homicide cases is hot required to be proved by the same class of evidence as the corpus delicti.
The authority of Chief Justice Shaw is no authority at all, for the same opinion from which it is quoted shows in another *568part thereof that lie did not mean wbat liis authority is quoted to sustain.
In regard to the authority of Mr. "Webster, we will simply say, we are not in the habit of looking into the arguments of lawyers addressed to juries for authority upon any legal proposition.
The rehearing is denied.