(dissenting) — Finding that I am unable to *1204agree with Division V of the majority opinion, I respectfully dissent.
My point of dissent is that Instruction No. 14, set out in full in the majority opinion, places the burden of proof of a defensive fact on the defendant, thus depriving the defendant of the presumption of innocence and relieves the State of the burden of proving the offense chai’ged beyond a reasonable doubt; and that the instruction is confusing and inconsistent.
The last time this court examined this question was in 1881 in State v. Hamilton, 57 Iowa 596, 11 N.W. 5. The instruction under consideration was approved by a three to two decision in these words at page 598 of 57 Iowa, page 6 of 11 N.W.:
“The court instructed the jury that the burden of proof was on the defendant to establish the fact that he was not present, by a preponderance of evidence. This instruction was correct and is now the settled law of the State. State v. Vincent, 24 Iowa, 570; State v. Hardin & Henry, 46 Id., 623; State v. Red, 53 Id., 69; State v. Kline, 54 Id., 183; State v. Northrup, 48 Iowa, 583.”
In State v. Hamilton, supra, at page 599 of 57 Iowa, page 6 of 11 N.W., Justice Adams wrote a dissent in which Justice Day concurred. He pointed out the burden to prove the defendant guilty was statutory (then section 4428, now section 785.3, Code of Iowa, 1962); that the instruction, as approved, relieves the State of this burden, and that it is inconsistent. In part, he said, at pages 599, 600 of 57 Iowa, pages 6, 7 of 11 N.W.:
“ ‘In my opinion, if the evidence introduced to show that the defendant was at another place when the robbery was committed, was such as to raise a reasonable doubt of his guilt, the jury would have been justified in acquitting. Code, § 4428. Now it is manifest that such doubt might be raised by evidence which could not be said to preponderate over the evidence leading to a different conclusion. This court has never undertaken to abrogate the rule that a reasonable doubt of guilt justifies an acquittal. It has, indeed, recognized this rule in the very eases relied upon by the majority as holding that when the defendant relies upon proving an alibi he must'prove it by a *1205preponderance of evidence. Both rules cannot be correct because they are inconsistent with each other. No jury can follow both. Let us suppose a case where the evidence of an alibi does not preponderate, but does raise a reasonable doubt of guilt. What shall a jury do? If they follow the instruction that the evidence of an alibi must preponderate they must convict and disobey the instruction as to reasonable doubt. On the other hand, if they follow the instruction as to reasonable doubt they must acquit and disobey the instruction as to the evidence of an alibi. * * *
.“‘But the rule adopted as to alibi appears to me to be wrong for another and still more cogent reason. In a civil action it is sufficient for the defendant to establish his defense by evidence which balances that of the plaintiff. According to the rule in question adopted by the majority, the defendant in a criminal action must prove his innocence by evidence which overbalances the evidence introduced to prove his guilt if the evidence of his innocence simply is that he was where he could not have committed the crime. The adoption of the rule in question requires a modification of the rule as to the presumption of innocence. The true doctrine under such rule would seem to be that the evidence of guilt is aided by a presumption of guilt, if the evidence of innocence relied upon is the evidence of an alibi.
“ ‘The majority, it appears to me, have been misled by reason of the fact that there is generally a well grounded suspicion attached to evidence of an alibi. It often comes from such sources that it should be greatly distrusted. The most direct and positive testimony may often very properly be regarded as entitled to but little if any weight. But to the extent that it does have weight, it should have the same effect which any other evidence of equal weight has. If it has weight enough to balance the evidence of guilt it should certainly be sufficient. And I think it should be sufficient if it raises a reasonable doubt.’ ”
The view expressed by Justice Adams in the Hamilton case has now become the majority view in this country. The defend*1206ant cites eases from 32 states1, the Federal Courts2, and text writers3 as supporting this view. The State does not contend the instruction given is other than a minority view.
An examination of the cases relied on by the majority opinion in the Hamilton case reveals, I believe, the mistaken view taken by this court.
In State v. Vincent, 24 Iowa 570, 578, 95 Am. Dec. 753, it is said:
“The alibi of the prisoner, and the existence in life of Claiborn Showers [the deceased] at the time of the alleged murder, are each independent propositions totally inconsistent with the guilt of the prisoner. It is evident the burden of proof of each rests upon the prisoner, for neither, against prima facie evidence of its corresponding inconsistent proposition of the prosecution, will be presumed. These defenses, then, must be sustained by the prisoner, and the evidence necessary to sustain either of them must be sufficient to outweigh the proof tending to establish its contradictory hypothesis.” No authorities are cited.
It cannot be denied the alibi is inconsistent with guilt, but *1207it is not an independent proposition. (I do not find the term “affirmative defense” used until 1927 in State v. McCumber, 202 Iowa 1382, 212 N.W. 137.) Where, as here, it is necessary for the State to prove the defendant present to commit the crime, the evidence for the State is, the defendant was present at the time and place in question. Defendant’s evidence of alibi is simply that he was not at the place in question but at another place, naming it, too remote for him to have been at the site of the crime. Defendant’s evidence is purely defensive. The fact to be proved by the State is, defendant was there, any evidence that shows he was not there negates that evidence. The effect of the evidence is the same of that of a witness, actually present at the scene of the crime, who testifies, “I did not see the defendant there at the time. I immediately drove a mile down the road and saw the defendant working in a field.” Certainly the first sentence of the witness’ testimony is not an independent proposition or an affirmative defense. The same should be true of the second, it merely explains and confirms the first.
The second sentence quoted above from State v. Vincent, supra, is a combination of inconsistency and non sequitur. Why is it evident the burden of proof of alibi rests on the prisoner? On all other matters it is on the State. From the quoted sentence we find this answer, it will not be presumed the defendant was not present when the State has offered evidence that he was. From this the opinion holds the defendant has the burden of proof. When the opinion (and the instruction in the case at bar) states the nonpresence of the defendant will not be presumed, the presumption of innocence has been denied him, and the State has been relieved of proving its case beyond a reasonable doubt. The defendant in the Vincent ease and this one had to be present to commit the crime as charged.
In State v. Hardin and Henry, 46 Iowa 623, 26 Am. Rep. 174, is the following quotation from Commonwealth v. Webster, 5 Cushing 295, 324, 52 Am. Dec. 711, 734 (Mass. 1850):
“ ‘In the ordinary case of an alibi, when a party charged with a crime attempts to prove that he was in another place at the time, all the evidence tending to prove that he committed the offense tends in the same degree to prove that he was at the *1208place when it was committed. If, therefore, the proof of the alibi does not outweigh the proof that he was at the place when the offense was committed, it is not sufficient.’ ”
The opinion then states this doctrine was simply recognized and approved in State v. Vincent, 24 Iowa 570. In the Webster case, supra, alibi is called an affirmative fact.
It should be noted in the opinion in State v. Hardin and Henry, supra, Justice Day pointed out the true rule at page 629 of 46 Iowa, as follows:
“For, if a reasonable doubt be created of the presence of the accused at the time and place of the commission of an offense which he could not commit when absent, a reasonable doubt is raised as to his guilt; and a reasonable doubt of guilt, all the authorities hold, entitles the accused to an acquittal.”
In State v. Northrup, 48 Iowa 583, 587, 30 Am. Rep. 408, we said:
“The jury were instructed that, to maintain the defense of alibi the burden was on the defendants, but that they were only required to prove it by a preponderance of the evidence. This is in accord with The State v. Vincent, 24 Iowa, 570.
“It is said there is a want of unanimity in the authorities on this question, and there are differences among the members of the court in relation thereto. The State v. Hardin et al., 46 Iowa, 623. But a majority of the court adhere to the rulings heretofore made, under the belief that the decided weight of authority is in accord therewith.”
In State v. Red, 53 Iowa 69, 70, 71, 4 N.W. 831, this court again cites the Vincent, Hardin and Northrup eases in approval of placing the burden of proof of alibi on the defendant. At page 71 of 53 Iowa is a paragraph attempting to justify the instruction in that it does not abrogate the doctrine of reasonable doubt. No attempt is made to explain the inconsistency pointed out by Justice Adams in his dissent in the Hamilton case.
To the same effect is State v. Kline, 54 Iowa 183, 185, 186, 6 N.W. 184.
The cases above examined are the entire basis for the five-line rejection of the views of Justice Adams in the Hamilton *1209case. It is submitted that the majority view was based on, 1, the thought this was the majority view, State v. Northrup, 48 Iowa 583, 587, 30 Am. Rep. 408; 2, that alibi was an independent or affirmative defense; 3, that so long as the instructions contained the statement the defendant’s guilt must be proved beyond a reasonable doubt and if a reasonable doubt arises from all the evidence or a lack thereof he is entitled to an acquittal, no harm is done; and 4, because an alibi might be fabricated with ease, whether the type of evidence warranted such assumption or not, it should be guarded at all cost.
Since the Hamilton case I do not find a case where we have re-examined the alibi instruction. See discussion in State v. Wagner, 207 Iowa 224, 227-232, 222 N.W. 407, 61 A. L. R. 882, bearing on whether the evidence raised the defense of alibi. At page 229 of 207 Iowa it is pointed out the defendant may prove “affirmatively” it was impossible that he could have been present and when he does the burden is on him, citing the same authorities as in State v. Hamilton, supra.
In State v. McCumber, 202 Iowa 1382, 1384, 212 N.W. 137, alibi is called an affirmative defense. The opinion did not deal with this instruction but the right of the State to use rebuttal testimony.
In State v. Johnson, 221 Iowa 8, 20, 264 N.W. 596, we find the instruction is approved, alibi is called an affirmative defense, and the non sequitur, that the instructions did not go as far as such rightfully may go in that a cautionary instruction was not given.
In State v. Dunne, 234 Iowa 1185, 1191, 15 N.W.2d 296, 299, 300, we approved a similar instruction in these words:
“Instruction 11 told the jury that defendant claimed an alibi. In language which has been approved, the instruction states that courts recognize the defense as one that can be easily manufactured; evidence in support thereof should be scanned with caution; the burden to- prove the defense by a preponderance of evidence rests upon defendant, but that if, upon the whole case, including- the evidence on the question of alibi, there was a reasonable doubt as to guilt, there should be an acquittal. See State v. Johnson, 221 Iowa 8, 20, 264 N.W. 596, 267 N.W. *121091, and cases cited; State v. Wagner, 207 Iowa 224, 230, 222 N.W. 407, 61 A. L. R. 882; 23 C. J. S. 764, section 1206; annotations 67 A. L. R. 122, 126; 124 A. L. R. 471.”
In State v. Rourick, 245 Iowa 319, 323, 60 N.W.2d 529, 531, dealing with the admissibility of evidence where notice of alibi testimony is not properly given, section 777.18, Code of Iowa, 1950; we find these statements:
“We start with the proposition that alibi is essentially an affirmative defense. * * * Whether technically so classifiable we need not determine here. * * * the notice required by section 777.18 is in the nature of a special plea in that it is required before the special issue or defense of alibi can be raised.”
In State v. Baker, 246 Iowa 215, 228, 66 N.W.2d 303, 310, in discussing* the necessity for an instruction in the absence of a request on the claimed defense the shooting was accidental, we said:
“* * # Strictly speaking, the claim of alibi is not a defense, since, in the prosecution of many crimes and particularly those of violence, the burden is on the State to establish the presence of the accused at the place of the crime at the precise time it was perpetrated, but this court for many years and by many decisions has held that in a defense of alibi, in the sense of being at a place so distant that participation in the crime was impossible, the burden is on the accused to establish such so-called defense by a preponderance of the evidence.” (Citing cases)
In the two cases cited last above this court recognizes that evidence of alibi is not an affirmative defense. The notice of alibi testimony required by section 777.18, Code of Iowa, 1962, does not create a new defense or a new plea. In the Eourick case Justice Smith states, “# * * the notice * * * is in the nature of a special plea in that it is required before the special issue or defense of alibi can be raised.” He was more than hesitant to call evidence of alibi an affirmative defense.
I have carefully examined the majority opinion to find a basis or reason for the statement, “The issue of alibi is an affirmative defense * * *.” None is given, in fact State v. Rourick, supra, is cited in support of it.
*1211The defendant does not confess and avoid the commission of the offense charged by offering evidence of his absence from the scene of the crime and explaining the absence by showing where he was and what he was doing at that time. It does not amount to admitting a crime was committed by someone, but merely denies that he committed the crime. Under his plea of not guilty defendant is entitled to offer any evidence that denies the charge made. When he shows he was not there he does just that.
That the instruction is inconsistent is well pointed out by Justice Adams in the Hamilton case at page 599 of 57 Iowa, page 6 of 11 N.W., in these words:
“No jury can follow both. Let us suppose a case where the evidence of an alibi does not preponderate, but does raise a reasonable doubt of guilt. What shall a jury do? If they follow the instruction that the evidence of an alibi must preponderate they must convict and disobey the instruction as to reasonable doubt. On the other hand, if they follow the instruction as to reasonable doubt they must acquit and disobey the instruction as to the evidence of an alibi. * * *.”
If the fact, evidence of an alibi may be readily manufactured, was ever a reason for placing the burden of proving alibi by a preponderance of the evidence on the defendant, that reason has now ceased to exist. Section 777.18, Code of Iowa, 1962, adopted by the Forty-ninth General Assembly in 1941, requires the defendant to file a written notice of his purpose to introduce alibi testimony, not later than four days before trial, setting forth the name, address and occupation of the witnesses he expects to call, and a statement of the substance of what he expects to prove by each witness. The purpose of the Act, chapter 314, Forty-ninth General Assembly, is, “An Act to provide for advance notice of the defenses of insanity or alibi in criminal cases.”
Compliance with section 777.18 gives the State an ample opportunity to investigate manufactured alibi testimony. The majority opinion concedes this.
The belief expressed in State v. Hamilton, 57 Iowa 596, 598, 11 N.W. 5, 6, and State v. Northrup, 48 Iowa 583, 587, *121230 Am. Rep. 408, that the decided weight of authority was iu accord with the view expressed is no longer true.
Defendant has cited cases from 32 states and the Federal Courts that sustain his position. It is unnecessary and impractical to quote from all of them. It is sufficient to illustrate the true rule to quote from four of the later cases.
In People v. Pearson, 19 Ill.2d 609, 614, 169 N.E.2d 252, 255, Justice Schaefer says:
“Logically, proof of an alibi is not proof of an affirmative defense because in order to establish its case the prosecution must show that the defendant was present at the scene of the crime, and evidence that the defendant was elsewhere is only one method of negativing the prosecution’s case. So where an instruction has unequivocally placed upon a defendant the burden of establishing an alibi, the conviction has been reversed. Hoge v. People, 117 Ill. 35, 44 [6 N.E. 796]; People v. Lacey, 339 Ill. 480, 488 [171 N.E. 544].
“To say that the burden is upon the defendant to establish an alibi can be accurate only if the term ‘burden’ is used in the sense of the requirement of going forward with evidence. But if that is all that is intended, any reference in an instruction to a burden upon the defendant is improper because it is never necessary or appropriate to- mention to a jury the burden of going forward with the evidence. Quite apart from the matter of instructions to the jury, to think or speak of alibi in terms of an affirmative defense can only cause confusion. The ease with which alibi testimony can be fabricated, and its obvious capacity to- surprise, may make appropriate some advance notice of the defense, but that is a different matter.”
Commonwealth v. Bonomo, 396 Pa. 222, 231, 151 A.2d 441, 446:
“* # * There is no- point in saying to a jury that the defendant must satisfy their minds of his innocence followed by a statement that he does not have to satisfy their minds but need only cause them to pause or hesitate as to his guilt. * * * The Commonwealth has the burden of proving every essential element necessary for conviction. If the defendant traverses one of those essential elements by evidence of alibi, his evidence *1213will be considered by the jury along with all the other evidence. It may, either standing alone or together with other evidence, be sufficient to leave in the minds of the jury a reasonable doubt which, without it, might not otherwise exist.”
Halko v. State, 175 A.2d 42, 49 (Del. 1961) :
“But we think it clearly erroneous. It is bottomed upon the theory that an alibi is an ‘affirmative defense’, similar to self-defense or insanity or former jeopardy. This is incorrect. An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it; or, as in former jeopardy, to invoke a bar arising out of the facts dehors the record.
“ ‘The defense of alibi * # * is not, properly speaking, a defense within any accurate meaning of the word “defense” but is a mere fact shown in rebuttal of the evidence introduced by the State.’ 1 Wharton’s Criminal Law § 381.
“Since an alibi is only a denial of any connection with the crime, it must follow that if the proof adduced raises a reasonable doubt of defendant’s guilt, either by itself or in conjunction with all other facts in the case, the defendant must be acquitted. 1 Wharton’s Criminal Law, § 381, citing* cases from nearly every state in the Union.”
United States v. Barrasso, 267 F.2d 908, 910, 911 (3d Cir. 1959), quotes with approval the following from United States v. Marcus, 166 F.2d 497, 503, 504 ( 3d Cir. 1948):
“ ‘By the weight of authority it is held that the instructions on the presumption of innocence of the accused, and of the necessity of fastening every necessary element of the crime charged upon the accused beyond a reasonable doubt, are not enough in cases involving the necessary presence of the accused at a particular time and place, when the accused produces testimony that he was elsewhere at the time. If the accused request an instruction as to the burden of proof on his alibi, an instruction on the subject must be given so as to acquaint the jury with the law that the government’s burden of proof covers the defense of alibi, as well as all other phases of the case.’ ”
In Wigmore’s Code of Evidence (Third Ed.) the burden is stated this way:
*1214“Art. 15. Criminal Acts. In all criminal issues as to the doing of the act charged,
“(1) the risk of jury-doubt is on the prosecution;
“(2) the duty of passing the judge does not shift to the defendant by any presumption of law; except as follows: * * *
“Par. (b). Alibi, as in Par. (c).
“Par. (c). Self-defense, on a charge of corporal violence; here the risk of jury-doubt remains on the prosecution, but the duty of passing the judge is on the defendant.”
It seems clear the only duty on a defendant claiming alibi is to go forward with evidence to raise the issue. He has no burden of proof, that is on the State.
The view expressed by Justice Adams in the Hamilton case, 57 Iowa 596, 599, 11 N.W. 5, 6, is now the law in a majority of states as well as recognized by the text writers. No- good reason appears why we should not change an erroneous view. Mark Twain is quoted as saying, “Loyalty to a petrified opinion never yet broke a chain or freed a human soul.” This court certainly has no loyalty to a mistaken view, no matter how long such has stood. In fact, our opinions do not indicate we have actually considered the instructions in alibi cases with the matters now considered in mind since the Hamilton opinion.
The pride and strength of this court has been its willingness to examine the majority view on any subject of law and to adopt the same where sound. That should be done in this case.
I would reverse this case for a new trial so the trial court will have the opportunity to instruct the jury on the issue of alibi in conformity with the views expressed herein.
Hats and Larson, JJ., join in this dissent.Footnote 1. Ragland v. State, 238 Ala. 587, 192 So. 498; Schultz v. Territory, 5 Ariz. 239, 52 P. 352; People v. Hoosier, 24 Cal. App. 746, 142 P. 514; People v. Gist, 28 Cal. App.2d 287, 82 P.2d 501; McNamara v. People, 24 Colo. 61, 48 P. 541; State v. Ilorwitz, 108 Conn. 53, 142 A. 470; State v. Cianfione, 98 Conn. 454, 120 A. 347; Smith v. State, 4 Ga. App. 807, 61 S.E. 737; State v. Ward, 31 Idaho 419, 173 P. 497; State v. Woohworth, 148 Kan. 180, 81 P.2d 43; State v. Wright, 138 Kan. 31, 23 P.2d 475; Parsley v. Commonwealth, 321 S.W.2d 259 (Ky.); State v. Ardoin, 49 La. Ann. 1145, 22 So. 620, 62 Am. St. Rep. 678; State v. Molay, 174 La. 63, 139 So. 759; People v. Crofoot, 254 Mich. 167, 235 N.W. 883; People v. Marvill, 236 Mich. 595, 211 N.W. 23; State v. Stiel, 157 Minn. 461, 196 N.W. 490; State v. Armstead, 283 S.W.2d 577 (Mo.); State v. Taylor, 118 Mo. 153, 24 S.W. 449; State v. McClellan, 23 Mont. 532, 59 P. 924, 75 Am. St. Rep. 558; Hall v. State, 135 Neb. 188, 280 N.W. 847, 118 A. L. R. 1300; Peyton v. State, 54 Neb. 188, 74 N.W. 597; State v. Mucci, 25 N. J. 423, 136 A.2d 761; State v. Smith, 21 N. M. 173, 153 P. 256; Territory of New Mexico v. Tais, 14 N. M. 399, 94 P. 947; People v. Tapia, 11 App. Div. 2d 679, 201 N. Y. S.2d 984; People v. Russell, 266 N. Y. 147, 194 N.E. 65; State v. Foye, 254 N. C. 704, 120 S.E.2d 169; State v. Sheffield, 206 N. C. 374, 174 S.E. 105; State v. Nelson, 17 N. D. 13, 114 N.W. 478; Stevens v. State, 26 Ohio App. 53, 159 N.E. 834; Shoemaker v. Territory, 4 Okla. 118, 43 P. 1059; State v. Milosevich, 119 Ore. 404, 249 P. 625; State v. Mayfield, 235 S. C. 11, 109 S.E.2d 716; State v. McGhee, 137 S. C. 256, 135 S.E. 59; State v. Chancey, 136 S. C. 305, 132 S.E. 824; Odeneal v. State, 128 Tenn. 60, 157 S.W. 419; Nichols v. State, 91 Tex. Cr. Rep. 277, 238 S.W. 232; Ayres v. State, 21 Tex. App. 399, 17 S.W. 253; State v. Whitely, 100 Utah 14, 110 P.2d 337; State v. Parsons, 90 W. Va. 307, 110 S.E. 698; Fraccaro v. State, 189 Wis. 428, 207 N.W. 687; and Roen v. State, 182 Wis. 515, 196 N.W. 825.
Footnote 2. Goldsby v. United States, 160 U. S. 70, 16 S. Ct. 216, 40 L. Ed. 343; United States v. Vigorito, 67 F.2d 329 (2d Cir. 1933), certiorari denied, 290 U. S. 705, 54 S. Ct. 373, 78 L. Ed. 606; Falgout v. United States, 279 F. 513; McCool v. United States, 263 F. 55; Fielder v. United States, 227 F. 832; and Glover v. Unhpd States, 147 F. 426.
Footnote 3. 15 Am. Jur., Criminal Law, section 315; 20 Am. Jur., Evidence, section 154; 53 Am. Jur., Trials, section 657; Annotation, 124 A. L. R. 471; Annotation, 67 A. L. R. 138; Annotation, 29 A. L. R. 1127; 22 C. J. S., Criminal Law, section 40, page 130; and 22A C. J. S., Criminal Law, section 574, page 320.