(dissenting):
Under the facts of this case I believe that the instruction on alibi was surplusage. I am not concerned with the timing of the giving of the instruction.1 The instructions concerning the government’s burden of proof and the instruction on reasonable doubt were adequate without any further specific instruction as to alibi.2 A defendant is not entitled to the “alibi” instruction unless the evidence shows the alibi evidence would be sufficient to negate guilt.3
I suggest that alibi is not an affirmative defense. An alibi is merely evidence showing that the defendant was not present at the time or place of the alleged crime. I believe it should be considered as any other evidence without a specific “alibi” instruction which suggests a burden not found in the law.4
Under my rationale, I would affirm the decision of the United States Army Court of Military Review.
. See ABA Standards, Function of the Trial Judge, § 5.11.
. Contra: see United States v. Harris, 458 F.2d 670 (5th Cir. 1972), cert. denied 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145; United States v. Booz, 451 F.2d 719, 721-22 (3d Cir. 1971).
. United States v. Cole, 453 F.2d 902, 906 (8th Cir. 1972), cert. denied 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122; see United States v. Dye, 508 F.2d 1226 (6th Cir. 1974), cert. denied 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653.
. See Pattern Instructions for Kansas, § 52.19.