(dissenting). My views are so at variance with the reasoning by which my associates have reach ed the foregoing result that I am impelled to characterize as inconsistent, illogical, and dangerous the instruction which they have commended and approved. By the language used, the jury was required to determine, in the first instance, whether the evidence introduced in support of the charge was sufficient, as a matter of law, to sustain a verdict of guilty, and then to say whether the accused, handicapped by the burden of proof, had made out a defense, or, in other words, proved his innocence?' Every student of the law fully understands the exact import of the phrase “burden of proof”; and every juror knows that a defendant in a criminal case, upon whom it is imposed, must make out his defense by the introduction of preponderating testimony, not that which balances merely and would suffice in a civil action, but that -which outweighs the evidence of guilt, re-inforced by a presumption of guilt arising from a case made out by the state, sufficient to sustain a verdict of guilty.
The presumption being that plaintiff in error was not presgjit, and is therefore innocent of the crime, it was error to *357charge that ‘ ‘the burden, is upon him to make out his defense as to an alibi.” Although the charge is sanctioned by some elementary writers, and sustained, perhaps, by the greater number of early cases, its tendency has ever been to devest the accused,’ at a most critical sta^e of the proceeding, of that humane and protecting principle, the presumption of innocence, with which, for every purpose of the trial, the law has clothed him; and its influence upon a jury is the same as an instruction that evidence sufficient to sustain a verdict of guilty converts such safeguard into a presumption of guilt, and shifts the burden of proof from the accuser to the accused. The subsequent formal, though wholly inconsistent, expression as to proof be* yond a reasonable doubt, is not curative in character, and, as this case stood, might have suggested to the jury that, in the opinion of the court, the entire evidence in the case, viewed in the light of such instruction, was sufficient to justify a conviction, unless the defendant had shown by the greater weight of testimony that, at the time charged, he was absent from the place where the alleged crime was committed, and was in no manner connected therewith. As the state, in order to overcome the presumption of innocence, and justify a conviction, was bound to prove beyond a reasonable doubt, unaided by any presumption of guilt, that plaintiff in error was present at and participated in the commission of the offense, the burden never shifted; and if the testimony offered on behalf of the defendant, when considered with all the other evidence in the case, raised a reasonable doubt, he was entitled to a verdict of not guilty. 1 McClain, Cr. Law, 399; Pollard v. State, 53 Miss. 410; People v. Stone, 117 N. Y. 480, 23 N. E. 13; Turner v. Com., 86 Pa. St. 54; State v. Child, 40 Kan. 482, 20 Pac. 275; French v. State, 12 Ind. 670; People v. Nelson, 85 Cal. 421, 24 Pac. 1006; State v. Chee Gong, 16 Or. 534, 19 Pac. 607; Howard v. State, 50 Ind. 190; Toler v. State, 16 Ohio St. 583. The phrase “burden of proof” is defined as that “obligation which the law imposes on a party who alleges the existence of a fact *358or thing necessary, in the prosecution or defense of an action, to establish it prima facie by proof.” The burden of proof is fixed at the inception of the trial, and does not change at any later stage of the proceeding. And. Law Diet.; Underh. Ev. 247; Willett v. Rich, 142 Mass. 356, 7 N. E. 776; Pease v. Cole, 53 Conn. 53, 22 Atl. 681. “In criminal cases the true rule is that the burden of proof never shifts,” says Mr. Juctice Clifford in Lilienthal’s Tobacco v. U. S., 97 U. S. 266. Tiffany v. Com. (Pa. Sup.) 15 Atl. 462; State v. Wingo, 27 Am. Rep. 329; Phillips v. State, 26 Tex. App. 228, 9 S. W. 557: Conyers v. State, 50 Ga. 103; People v. Elliott, 80 Cal. 296, 22 Pac. 207; Com. v. McKie, 1 Gray 61.
The doctrine that persons accused of crime who rely upon an alibi are not entitled to any benefit from their evidence, unless it preponderates against that offered by the prosecution on that issue, abrogates the fixed theory as to the presumption of innocence, and does violence to the rule that proof beyond a reasonable doubt is essential to a conviction. Mr Bishop, in his New Criminal Procedure, has collated numerous recent and well-reasoned cases in support of his view that the presumption of innocence and burden of proof in no manner change on account of an alibi, and, with characteristic vigor, exemplifies the wisdom of the doctrine, and declares it to be the law of the books. In dismissing the subject, he observes that “some courts, if we follow their language, seem to look upon the alibi as though it were a special and separate defense under a distinct plea. And they appear to hold that the defendant has the burden to prove it; yet only by a preponderance of the evidence, not beyond a reasonable doubt. On the other hand, as the foregoing elucidations make plain, the true doctrine, supported equally by reason and the majority of the cases, is that the presumptions and burden of proof are not changed by the alibi.” From page 53, 2 Am. & Eng. Enc. Law (2d Ed.), I quote: “Alibi is regarded by some courts as a special affimative defense, but the better doctrine seems to be that it is not a *359‘defense' in the accurate meaning of the term,' but a mere fact shown in rebuttal of the state’s evidence; and, consequently, the evidence introduced to support it should be left to the jury, uninfluenced by any charge from the court tending to place it upon a different footing from other evidence in the case.” The headnote fully accords with the opinion reversing the trial court in Humphries v. State, 18 Tex. App. 302, and is as follows: “In a trial for theft,' one of the defenses was alibi; and, on the issue raised thereby, the trial court charged the. jury as follows: ‘If the jury believe that the alibi which has been set up as a defense in the case has been proven, or if they have a reasonable doubt as to the fact of whether said alibi has been proven, they will give the defendant the benefit of it, and acquit him. When an alibi is relied upon as a defense, it rests on the defendant to prove it to the extent of raising a reasonable doubt as to whether the accused is the person who committed the offense charged.” Held error. In no criminal trial is the burden of proof shifted from the state onto the defendant. Proof of alibi is not an affirmative proposition by the defendant, but is an attack upon the inculpatory evidence of the state. It may be such as affirmatively disproves the case made. by the-state, or it may only suffice to legitimately raise a reasonable doubt of the guilt of the accused; and in either case he is entitled to an acquittal.” To the same effect, Ayres v. State, 21 Tex. App. 399, 17 S. W. 253. In Kansas the following instruction was given below, and on appeal held sufficient to compel a reversal: “The burden is upon these defendants to show, by a preponderance of the evidence, that this ‘alibi’ is fairly made out; that is to say, that they have fairly satisfied you by a preponderance of the evidence that at the time when this offense was committed, and where this offense was committed, they were at another place at that particular time. But, while this is the law surrounding that particular branch of the case, you must' at all times, gentlemen, bear in mind that you must be satisfied from all the evidence in the case, beyond a reasonable *360doubt, ,as to the guilt of these defendants, or either of them, before you will be justified in convicting him.” In Howard v. State, supra, this language is used: “An erroneous instruction to a jury in a criminal action is not corrected by another which states the law correctly, unless the erroneous one is plainly withdrawn.” And in Cunningham v. State, 56 Miss. 269, it was held that ‘ ‘the giving of conflicting instructions is erroneous.” The judgment of conviction should be reversed, and the case remanded, with the direction that the accused be tried according to law.