The defendant was indicted and tried in the criminal court of the city of St. Louis, and convicted of the crime of rapé. From this judgment of conviction he appealed to the St. Louis court of appeals, where the judgment of the criminal court was reversed, .and from this judgment of reversal the state has appealed to this court.
The defence relied upon at the trial was an alibi, and in reference thereto, and reasonable doubt, the court gave the following instructions :
“4. If the jury believe and find from the evidence that the defendant was not present at the place and time the alleged rape is stated to have been committed, by the prosecuting witness, Kate Farrell, but that the defendant, at the time of the alleged rape, was elsewhere, at another and different place than where the alleged rape is stated to have taken place by said Kate Farrell, then you should acquit the defendant.”
“7. The jury are the sole and exclusive judges of the credibility of the witnesses. With that the court has nothing to do ; and if you believe and find from the evidence that any witness or witnesses have wilfully testified falsely to any material fact in the cause, you are at liberty to disregard the whole, or any portion, of such witness’ or witnesses’ testimony.”
‘‘8. The law presumes the defendant to be innocent, and this presumption continues until his guilt has been established by the evidence in the case, to your satisfaction, and beyond a reasonable doubt. By the words, or terms, ‘beyond a reasonable doubt,’ is meant convinced to a moral certainty. If you are thus convinced of his guilt, it is your duty to convict; if not, it is your duty to acquit.”
*443The court of appeals reversed the judgment of the circuit court, as stated in the opinion, “because (in the fourth instruction) the jury were directed to the defence of an alibi, in language which would be likely to convey to their minds the idea that it was a substantive affirmative defence, which must be made out by a preponderance of evidence, an error which was not cured by the giving of an appropriate instruction as to reasonable doubt, in its application to the whole case.” The precise question involved in the above ruling was ruled otherwise by this court in the cases of State v. Jennings, 81 Mo. 185, and State v. Rockett, 87 Mo. 666. In the case last cited it is said through Sherwood, J., “I find no fault with the instructions. One was given in respect to the alibi of the defendant, and then a general instruction as to reasonable doubt. This last covered the whole case, and in terms applied to all the evidence in it. It was not necessary, and it would be without parallel in criminal practice, to link, seriatim, the idea of reasonable doubt to every atom of evidence in the case. Evidence of an alibi is only ordinary evidence in rebuttal, and is to be treated in the instructions as is other evidence of like sort. For these reasons, the State v. Lewis, 69 Mo. 92, does not apply here, for there, no instruction as to alibi was given.”
So, where insanity is relied upon'as a defence, it is held, in the following cases, that the “burden of proving such insanity rests upon the defendant, and he is not entitled to the benefit of a reasonable doubt whether he was or not insane.” State v. Huting, 21 Mo. 464; State v. McCoy, 34 Mo. 531; and State v. Klinger, 43 Mo. 127. We have examined the cases cited by counsel to establish a different doctrine, and while they show that perhaps in Indiana and Tennessee, a different rule from the one above announced obtains as to an alibi, we are not disposed to depart from one so long established in this state, believing it to be in accord with sound reason and correct principle.
*444It is also insisted that the evidence of the medical experts as to whether or not, from the physical condition of the person outraged, the hymen was ruptured or actual penetration had taken place, required the court to give an instruction, as if only an attempt to perpetrate the crime had been proven; and to sustain this contention we have been cited to the case of State v. Branstetter, 65 Mo. 149, and others of which it is a representative. What is there said applies to that class of offences of which there are different degrees, and has no application to a case where the crime of rape is charged, of which there are no degrees. In case of State v. Burk, 89 Mo. 635, it is held that sections 1654,1655, and 1927, Revised Statutes, apply only to that class of offences of which there are different degrees.
It is also insisted that the case did not call for the seventh instruction. We think otherwise ; there was direct conflict between the evidence of the witnesses as to the alibi, and other matters in evidence not necessary to specify. Without entering into the details of the evidence, it is sufficient to say of it that it shows the commission of the crime by some one, and that the victim, a girl of about fifteen years of age, immediately after her assailant left her, aroused the household and made complaint; that her neck, which was swollen with an abrasure of the skin, showed the imprint as of four, fingers and thumb of a hand, indicating that she had been so severely choked as to cause her eyes to be bloodshot, and to stand out from their sockets ; that, upon the arrival of the police and physicians, she gave a description of her assailant, as to his color, his mustache, his overcoat, hat, and pants, so minute as to impress the policeman, who knew the defendant, that he was the guilty party. She also stated that while her assailant was choking her, in resisting him, she scratched Ms hand. It also shows that when defendant was arrested and brought into her presence, a few hours afterwards, she at once recognized *445him as the perpetrator of the outrage, and as the officers were taking him away, she procured a pistol, pointed it at defendant, and was prevented from shooting by the officers taking the same from her. It also appears that defendant’s hands were examined and one or two fresh scratches were found on one of them. On the other hand, the evidence of the defendant, himself, and two other witnesses, who lived in the lower room of the house where defendant lived, he occupying one upper room with his wife, tended to show that defendant was at his home at the time the outrage was perpetrated. On this subject there was a conflict of evidence, which was for the jury to pass upon, who, having the witnesses before them, were in a better position than we are to determine what weight should be given to their evidence.
I have carefully examined the whole record and find nothing in it to justify an interference with the judgment of the criminal court, and the judgment of the St. Louis court of appeals is hereby reversed and that of the St. Louis criminal court affirmed.
All concur.