(dissenting): In the light of the whole record, I think the trial court erred in not granting a new trial.. The court did not base denial of the motion upon the ground that the new evidence could with reasonable diligence have been produced at the trial, but upon the grounds that the newly discovered evidence was cumulative; that for the most part it would depend on testimony of witnesses who had testified at the trial and that it was not of such character as to change the result if a new trial were granted.
In my opinion, the newly discovered evidence was in no real sense “cumulative” in character. Let us examine realistically the situation which confronted the defendant. More than three months after the car was stolen, he was charged with the theft. Unless we assume at the outset that he was guilty, what would he at once try to do ? He would try to recall where he was on the evening of October 3, the date when the car was stolen. Unless we can put our finger upon some particular event or circumstance that will enable us to do it, how many of us could tell just where we were and what we were doing on some date three months before? I confess that very often I would be unable to tell, as to days much less than three months past. Coming upon a cancelled check given upon the day that he and Billbe, his employer, finished a painting job in Missouri, and noting that the check was dated October 3 (it subsequently appeared that the check was mistakenly dated and should have been dated October 2), he would naturally begin at once to recall what he did upon the evening of the date the job in Missouri was finished. As shown by the recital in the court’s opinion, his alibi testimony related entirely to that. After this testimony had been admitted, the state showed that the Missouri painting job had been finished on October 3 and not October 3. This left the defendant’s alibi testimony wholly immaterial. It may well be said that in such a situation defendant’s counsel, when thus taken by surprise, should have at least asked for a continuance. Whether at *114that stage of the trial there was any chance of a continuance being granted, we need not speculate. In any event, and in view of subsequent developments, I think we should regard the defendant’s situation in this respect with considerable leniency. What, if anything, was done to make a showing in the defendant’s behalf on the first motion for a new trial, we do not know. It does appear, however, that other attorneys were employed who did start a search for evidence to show where the defendant was on the evening of October 3. As a result of that search they produced many affidavits substantial in character. In his affidavit Walter Trout stated that he went to Parsons on the evening of October 3, registered at the hotel there on that evening, and entered the hospital at Parsons the next day; that his son Herbert Trout, as a member of the Iola high school football team, left Iola in the afternoon of October 3 to take part in a game at Fort Scott that evening. The fact that Walter Trout registered in the hotel the night of October 3 was corroborated by the hotel owner from her hotel records and Walter Trout’s admittance to the hospital on October 4 was corroborated by the surgeon in charge of the hospital. In her affidavit, Barbara Trout alleged that when she had given testimony as to the whereabouts of the defendant on the evening of October 3, she was relying upon the assumption that it was October 3 when the defendant returned from the painting job in Missouri. In her affidavit Dorothy Leigh made a similar statement concerning her previous testimony as to where the defendant was on the evening of October 3, and asserted that on the evening her brother Herbert Trout, a member of the Iola football squad, went to Fort Scott to play in a night game, being the day that her father went to Parsons to enter the hospital, she and her husband went to a picture show in Iola at about seven o’clock and that they left the picture show at 9:30 or a quarter of ten, and went to Cooksey’s drugstore before going home. October 3 was shown in an affidavit of the Iola high school principal to have been the date when the football game in question was played. In his affidavit Billbe, the painting contractor for whom the defendant was working, stated that when he was consulted by Mr. Leigh as to the date when the painting job was completed in Missouri, he remembered that he had written a check at Neosho, Mo., on the day when the work there was finished, and on looking up his cancelled checks found it was dated October 3 and relying upon that date, he had stated that he and the defendant returned from Missouri on *115October 3; that at the trial when he was shown an affidavit by the Neosho, Mo., postmaster that the painting job there had been completed on October 2, he then realized that he had put the wrong date on the check when it was written and had thus been later misled into believing that it was October 3 when the work was completed when, as a matter of fact, it must have been October 2. I do not see how this evidence can be considered cumulative. The fact that the defendant was somewhere else on October 2 is in no way inconsistent with a contention that he was also somewhere else on October S.
In the next place, I think it was hardly accurate to say that the submitted affidavits were in the most part by persons who had been witnesses at the trial. In addition to affidavits of persons heretofore referred to, several of whom had been witnesses at the trial, numerous affidavits were submitted to the effect that when the stolen car was examined on October 4, the glass in one of the front doors was partly shattered and on the glass remaining in the door there was a considerable amount of blood and a small amount of hair which appeared to be human hair; that the officers had taken samples of the blood and of the hair. There were affidavits of a number of persons stating that they were present when the defendant came to collect his week’s pay as a painter on October 4, that he was there fifteen or twenty minutes, and they were certain that they would have observed any scratches, abrasions or injuries on or about his face or head if there had been such there and they saw none. In other affidavits submitted, there was also some pertinent evidence bearing on the issue of identification of the defendant as the man who called at the service station to get gasoline for a wrecked ear, which need not be recited.
Next, I do not see how it can be said that the newly discovered evidence, if believed, was not of a character to change the result. The jury might not believe it, but if it did it would certainly have concluded that the défendant could not have committed the crime at the time the car was stolen.
As noted in the court’s opinion, the trial court instructed the jury that possession of the stolen car soon after the theft took place threw the burden upon the defendant to explain such possession. In that instruction, the court did instruct the jury that if a reasonable doubt remained as to whether the defendant stole the property, he should not be convicted, but did not instruct that such *116possession needed to be proven beyond a reasonable doubt. I doubt very much whether the instruction, standing alone, was proper. Standing alone, it assumed that the defendant was in possession of the stolen car soon after the theft, which was an essential fact to be proven. It is admitted that the court did give a general instruction as to presumption of innocence, of the necessity of being convinced beyond a reasonable doubt, but neither in its brief nor in the oral argument did the state contend that there was any specific instruction that the jury must be convinced beyond a reasonable doubt that the defendant was in possession of the stolen property soon after the theft. All this is said in full recognition of the well-established rule that instructions, unless clearly erroneous, are not subject to review unless we have all of the instructions before us for consideration as a whole. But 'again it seems to me that the very doubtful character of the instruction which assumes possession by the defendant of the stolen car should, in the light of the slender evidence upon which conviction was secured, have some weight in determining whether a new trial should be granted.
I agree fully with the view that the alibi testimony offered during the trial was inadmissible both under the statute and our decisions. But in spite of its admission the state secured a conviction. However, the fact that in this particular case the state was evidently not taken by surprise and was prepared to show upon cross-examination that the painting job in Missouri was finished on October 2 instead of October 3, does not cure the failure to observe the alibi statute. I am not unmindful of the difficulties encountered by prosecuting attorneys in meeting alibi evidence which is often not too hard for defendants to get and equally often not easy to disprove. The alibi statute was carefully drawn to meet a real need and we should do nothing to weaken it. As to a new trial, the affidavits gave notice as to time and place, and witnesses that would be used, and it is not to be assumed that the alibi statute would not have been complied with if a new trial had been granted.
Conviction in this case was secured solely upon the evidence of one witness who identified the defendant as the man who called at his gas station more than three months before to get gas for a stalled and damaged car, and who identified that car as the stolen car. The only way that sort of evidence could be met was by show*117ing that the witness must be mistaken in the identification because the defendant was elsewhere at the time. In so meeting it, the defendant naturally relied upon the accuracy of a date shown upon a cancelled check. By his discovery, during the trial, that the check had been wrongly dated, he wound up by only showing where he was on October 2, and with no evidence to show where he was on October 3. It is not apparent that this was through any fault of his own. I think he should have had a chance, in a new trial, to put the newly discovered evidence before a jury.
Smith and Cowan, JJ., join in the foregoing dissenting opinion.