concur, dissenting:
We respectfully dissent. We would affirm the trial court’s judgment dismissing the petition for writ of habeas corpus.
The majority opinión very persuasively demonstrates that the defense of alibi is not an affirmative defense and that an instruction placing the burden on defendant to establish alibi by a preponderance of the evidence is erroneous. We agree. This court so held in Johnson v. Bennett, 8 Cir., 386 F.2d 677. No disagreement exists with the majority view that the defendant has a constitutionally protected right to have the benefit of a presumption of innocence at his trial and to have the burden placed upon the prosecution to establish his guilt beyond a reasonable doubt.
The federal cases cited by the majority opinion in support of a reversal are all cases dealing with a reversal on direct appeal from a federal conviction. It would also appear that the instructions in the cited cases are less explicit in advising the jury that the evidence on alibi is to be considered on the issue of guilt.
The case before us involves a state conviction affirmed by the State Supreme Court on January 15, 1963. State v. Stump, 254 Iowa 1181, 119 N.W.2d 210, cert. denied, 375 U.S. 853, 84 S.Ct. 113, 11 L.Ed.2d 80. The crime upon which the conviction was based occurred on June 9, 1961. As the majority opinion concedes, due process permits the state a wide range in developing rules of procedure and evidence. Federal appellate courts do not have the same supervisory *124power over state courts as they do over federal trial courts. Only arbitrary and oppressive state procedural rules which go to the extent of depriving a defendant of his federally guaranteed constitutional rights warrant upsetting of a state court conviction.
The point of departure from the majority opinion is upon the issue of whether the instructions given when fairly considered as a whole do in fact deprive the defendant of the benefit of the presumption of innocence. It is our view that they do not.
The Supreme Court of Iowa upon defendant’s direct appeal, State v. Stump, supra, considered and rejected the constitutional attack here made. The Iowa Court adheres to its long-established rule that alibi is an affirmative defense on which the defendant has the burden of proof. In its opinion, the pertinent applicable law is thus stated:
“In the trial of a criminal case a defendant is not required to do anything. Even though he elects to do nothing the prosecution in order to convict must establish defendant’s guilt beyond a reasonable doubt. This burden on the prosecution never shifts. It remains throughout the trial as a shield for defendant.” 119 N.W.2d 210, 218.
With respect to the burden of proof alibi, the Court states:
“This goes only to the testimony that he was at some specific place. If established it constitutes an absolute defense. To the extent that it may be an absolute defense it is affirmative in nature. Even though not affirmatively established it is still defensive against the prosecution’s burden of establishing defendant’s guilt beyond a reasonable doubt.” (Emphasis added.) 119 N.W.2d 210, 218.
The challenged instruction, No. 14, is set out in full in the Iowa Supreme Court opinion and is also set out in footnote 5 to the majority opinion. The majority opinion relies largely upon the isolated quoted statement in paragraph 2 of instruction 14 reading:
“ * * * before you can acquit the defendant by reason of this defense [alibi] you must find that he has established it by a preponderance or greater weight of the evidence bearing upon it.”
Immediately following the portion just quoted and in the same paragraph, the instruction- continues :•
“If he has established by the greater weight of the evidence that he was on the highway between Des Moines and Knoxville, Iowa, at such a distance from Des Moines that he could not have committed the crime charged herein, you should return a verdict of not guilty.”
Thus, the jury is plainly told that if defendant has proved by a preponderance of the evidence that at the time of the crime he was at a place other than the scene of the crime, he should be acquitted forthwith. The instruction does not either by express language or by fair implication state that if defendant has not proved alibi he should be convicted. Nor does the instruction advise the jury that if defendant has not established his alibi the evidence offered in support of alibi can have no further consideration. Instead, the court specifically instructed the jury that in event it has not found for the defendant on the alibi issue, to proceed with the consideration of the case as follows:
“If the defendant has failed to establish this defense by a greater weight of the evidence you should still consider the evidence which has been introduced in support thereof, and if, after considering the case as made as a whole, including this evidence, you entertain a reasonable doubt as to his having committed the offense charged or either of the included offenses herein, you should return a verdict finding the defendant not guilty.
“You will understand that the burden of proof referred to in this paragraph rests upon the defendant only *125as to the proof that he was on the highway between Des Moines and Knoxville, Iowa, at the time the shooting occurred and at such a distance from Des Moines that he could not have been the person who did the shooting. By reason of this burden resting upon him, he is not bound or required to prove his innocence as to the whole case, for the burden of proof rests upon the State as to the case as a whole to prove the def endant 'guilty • beyond a reasonable doubt before a verdict of guilty on any of the charges included herein can be returned against him.” (Emphasis added.)
The Supreme Court, this court and other courts have uniformly held that fragments of instructions should not be considered in isolation but that instructions should fairly be considered as a whole and such principle governs in cases where violations of constitutional rights are asserted. United States v. Gainey, 380 U.S. 63, 70-71, 85 S.Ct. 754, 13 L.Ed.2d 658; Leland v. State of Oregon, 343 U.S. 790, 795, 800, 72 S.Ct. 1002, 96 L.Ed. 1302; McIntosh v. United States, 8 Cir., 341 F.2d 448, 456; Harding v. United States, 8 Cir., 337 F.2d 254, 257; Hayes v. United States, 8 Cir., 329 F.2d 209, 218; Stoneking v. United States, 8 Cir., 232 F.2d 385, 389; United States v. Andreadis, 2 Cir., 366 F.2d 423, 434; United States v. Senior, 7 Cir., 274 F.2d 613, 616-617. See 23A C.J.S. Criminal Law § 1321(1), (2).
Leland v. State of Oregon, supra, affords strong support for an affirmance here. In that case, a murder conviction was affirmed. Oregon by statute required that a defendant pleading insanity should establish such defense beyond a reasonable doubt. Defendant tendered the insanity defense. The trial court, pursuant to the Oregon statute, placed the burden on the defendant on the insanity issue. However, the usual instruction placing the burden upon the prosecution to establish essential elements of the crime beyond a reasonable doubt was given, as is the situation in our present case. In holding that no error was thereby committed, the Court states;
“It is contended that the instructions may have confused the jury as to the distinction between the State’s burden of proving premeditation and the other elements of the charge and appellant’s burden of proving insanity. We think the charge to the jury was as clear as instructions to juries ordinarily are or reasonably can be, and, with respect to the State’s burden of proof upon all the elements of the crime, the charge was particularly emphatic. Juries have for centuries made the basic decisions between guilt and innocence and between criminal responsibility and legal insanity upon the basis of the facts, as revealed by all the evidence, and the law, as explained by instructions detailing the legal distinctions, the placement and weight of the burden of proof, the effect of presumptions, the meaning of intent, etc. We think that to condemn the operation of this system here would be to condemn the system generally. We are not prepared to do so.” 343 U.S. 790, 800, 72 S.Ct. 1002, 1008.
The Leland Court, at p. 797 of 343 U.S. at p. 1006, of 72 S.Ct., recognizes that the Supreme Court in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499, “announced the rule for federal prosecutions to be that an accused is ‘entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.’ ”
The Court then states: “The decision obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts.” 343 U.S. 790, 797, 72 S.Ct. 1002, 1007. In support of such statement, the Court at p. 799, 72 S.Ct. at p. 1007 observes:
“ ‘The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment. * * * An important *126safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review.’ Mr. Justice Frankfurter, concurring in Malinski v. People of State of New York, 324 U.S. 401, 417, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). We are therefore reluctant to interfere with Oregon’s determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice.”
The majority opinion in our present case states that there is more reason for placing the burden of proof of insanity upon the defendant than there is in the alibi situation. This may be conceded. Nevertheless, the reasoning of the Lelxmd case to the effect that the instructions as a whole preserve defendant’s constitutional right to the benefit of the presumption of innocence is persuasive and convincing authority.
In Johnson v. Bennett, supra, this court rejected a similar attack on the Iowa alibi instruction. In that case, other substantial issues were raised apart from the alibi issue. We are aware that the Supreme Court has granted certiorari in Johnson. We have no means of predicting whether the Supreme Court will reach the alibi issue in such case, and if so, what the result will be. Parenthetically, we note that we consider the instructions in the present case somewhat stronger with respect to preserving defendant’s constitutional rights than was the situation in the Johnson case. It is also noted that the Supreme Court has in quite a number of instances refused to apply new constitutional privileges retroactively. See Johnson v. Bennett, supra. See also, Stovall v. Denno, 388 U.S. 293, 296-301, 87 S.Ct. 1967, 18 L.Ed.2d 1199, where criteria for determining retroactivity of newly announced constitutional privileges are stated.
As hereinabove stated, no disagreement exists with the majority view that an instruction placing the burden of proof of alibi upon the defendant is erroneous. Such an instruction should not be given. It places the jury through a useless gesture of determining whether the defendant met the burden of establishing alibi and if so, it allows for acquittal forthwith. However, the alibi burden of proof instruction is not inconsistent with the clear direction given the jury in the instructions in the present case to the effect that the burden is on the State to prove defendant guilty beyond a reasonable doubt upon the basis of all the evidence, including that offered in support of alibi.
In addition to the clear language of the third and fourth paragraphs of instruction No. 14, the court in other instructions squarely places the burden upon the state to prove all essential elements of the offense beyond a reasonable doubt. The usual instructions on the presumption of innocence and reasonable doubt are given. Thus it appears that when the instructions are fairly considered as a whole, the burden is firmly placed upon the State on the basis of all the evidence, including that offered in support of alibi, to prove defendant guilty beyond a reasonable doubt. Under the instructions given, defendant has been given the full benefit of the presumption of innocence.
The majority opinion in several places speaks of alibi as the sole defense. The defendant entered a plea of not guilty to the indictment. By such plea, as the court properly advised the jury, defendant has put in issue all material allegations of the indictment. The instructions squarely place the burden upon the State to prove all essential elements of the offense charged beyond a reasonable doubt.
Defendant’s former fiancee, Leanna Skultety, who knew defendant well, testified positively that she saw the defendant fire the fatal shot. There is corroborating evidence, as outlined in the state trial judge's memorandum overruling the motion for a new trial. A requisite element of the offense is proof that the defendant fired the fatal shot. Obviously a determination by the jury beyond a reasonable doubt that defendant fired the *127fatal shot would carry with it a finding that the defendant was within firing range at the time he fired the shot.
The evidence in support of alibi is extremely weak even if the evidence supporting alibi is accepted at face value. The fatal shooting was reported to the police at 8:34 p. m. It apparently was reported promptly but a slight interval necessarily existed between the event and the report. It is defendant’s testimony that he left Des Moines about 8 p.' m. and that he was en route to Knoxville at the time of the shooting. He states that he arrived at the Mobil Gas Station in Knoxville shortly after 9 p. m. It is undisputed that the distance from the murder scene to the gas station is forty-two and one-half miles. An officer testified that he made the trip between the murder scene and the gas station in forty-seven minutes while observing all speed limits. Richard Kaster, an alibi witness on behalf of defendant, testified that defendant stopped at the gas station between 9:10 and 9:15 p. m. He said he left the gas station to pick up a car eleven blocks distant and that he had looked at his watch when he started that trip and it was 9 p. m. It was shortly after he completed such trip and had pushed a car the eleven blocks back to the station with his pickup that defendant arrived. Neither defendant nor Kaster, nor any other witnesses offered who were at the station, had recently looked at their watches or were able to state with any degree of precision the time when defendant appeared at the station.
Judge Stephenson, in his opinion dismissing the writ, determined upon the basis of the principle stated in Leland v. State of Oregon, supra, that the instructions given, although not a model of clarity, did not constitute “a failure to observe the fundamental fairness essential to the very concept of justice,” and that no violation of due process had been established. We agree with such conclusion.
Defendant’s contention that § 777.18, I.C.A., is unconstitutional lacks merit. No cases are cited in support of such contention. Section 777.18 requires a defendant to give written notice of intention to use alibi witnesses and to set forth the name, occupation and address of the alibi witnesses and the substance of what the defendant expects to prove. Such appears to be a reasonable procedural rule designed to expedite the trial. If at the time of the trial defendant for the first time offered evidence that he was at a distant point at the time of the crime, fairness might well require a continuance to permit the State to investigate the truth of such evidence. As is pointed out by Judge Stephenson, the State is required to give a defendant similar information as to evidence to be used in its case in chief, either by minutes attached to the indictment or by notice.
In any event, defendant complied with § 777.18 and there is nothing to show that he was handicapped in any way in presenting any alibi evidence which he might choose to present. No prejudice rising to the dignity of a due process’ violation has been shown.
The short answer to the majority contention that the defendant was confronted with the dilemma of choosing between two constitutional rights — the right to offer alibi testimony in his defense or the right to have the benefit of the presumption of innocence — is that under the instructions given defendant did not lose any right to have the benefit of the presumption of innocence by the introduction of testimony in support of alibi.
Defendant raises a third point to the effect that his rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States were violated by the reception of evidence of certain allegedly incriminating statements made by defendant to police officers while in custody. Such issue is not reached by the majority opinion.
The trial court found as a fact after an evidentiary hearing that the statements in controversy were voluntary and not coerced, and so determined that inasmuch *128as the case was tried prior to the Supreme Court decisions in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the holding of such cases do not apply under the teaching of Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. We would affirm upon this issue upon the basis of the trial court’s opinion.
The right given the State by the majority opinion to retry the defendant is one of doubtful value. In the seven years that have intervened since the commission of the crime, it is likely that some of the witnesses will no longer be available and that the memory of other witnesses will be dimmed by the passing of time. The orderly and fair administration of justice will not be furthered by such a drastic remedy under all the circumstances existing in the record in this case.
The judgment dismissing the petition for habeas corpus should be affirmed.