(b) Erroneous instructions.—A charge to the jury, "that the law always looks with suspicion on the defense of an alibi,” does not assert a correct legal proposition, is an invasion of the province of the jury, and unfair to the accused.' And it is error to charge that this defense is liable to great abuse, growing out of the ease with which it may be fabricated, and the difficulty with which such fabrication can be detected;" or to charge that it is very often resorted to by guilty persons, as well as innocent ones, and one in which perjury, mistake, and deception are often committed.' So, also, a charge that

2

an alibi must "cover and account for so much of the time of the transaction, as to render it impossible the prisoner could have committed the offense," is too exacting, it being only necessary that the whole evidence make the prisoner's guilt reasonably doubtful. Such a charge is also liable to mislead the jury, and is ground for a new trial. Again, a charge that if the jury should find that the defendant, in alleging an alibi, was guilty of falsehood, they might consider it additional evidence of guilt, is error; and so is a charge that, "when proof of an alibi is attempted, and proven to the satisfaction of the jury, it is conclusive of the case; when it is attempted, and the proof to sustain it is not satisfactory the failure to prove it satisfactorily is a circumstance unfavorable to the defendant, but it is no more so than an attempt to clear himself by any other false or fabricated testimony." So, also, an instruction which in effect ren

acquit the defendant." Held, correct; that it properly designated alibi as a defense; and that it did not impose the burden of proving an alibi on the defendant, or make him prove that it was impossible for him to have been present at the time and place of the killing. --Gallaher v. State, 28 Tex. App. 247.

1

Spencer v. State, 50 Ala. 124; People v. Kelly, 35 Hun 295.

2 Albin v. State, 63 Ind. 599.

3 State v. Chee Gong, 16 Oreg. 534.

4 McAnally v. State, 74 Ala. 9; Adams v. State, 42 Ind. 373; Howard v. State, 50 Ind. 190.

♪ Wisdom v. People, (Colo.) 17 Pac. Rep. 519.

State v. Byers, 80 N. C. 426.

Adams v. State, (Fla.) 10 So. Rep. 106. On a trial for larceny, a charge to the jury: "In disposing of the witness to prove the alibi you will consider whether there are any material facts proven in the case which chal

ders nugatory all proof of an alibi, unless the state has previously proved the commission of the offense at the time and place in question, is erroneous; as is an instruction which in effect announces that the burden of proof shifts to the defendant on the issue of an alibi.1

It is error to charge

$257. Instructions as to character. that evidence of defendant's good character is available only in a doubtful case, for such evidence may generate a doubt of guilt.' And instructions that such evidence, if believed, "is sufficient to generate a reasonable doubt of defendant's guilt," are erroneous, as the sufficiency is for the jury.' So it is not sufficient to instruct the jurors that the good character of defendant is a circumstance for their consideration, for this is only equivalent to the admission of the testimony as to character. And it is error to charge that a prisoner has a right to prove his good character "as a kind of make-weight in his favor if there is a pinch in the case;" or that evidence of good character should be considered, when there was a question as to whether defendant or some other party committed the offense. Previous good character is a fact which defendant is entitled to have submitted for the consideration of the jury, without any disparagement by the court, and it is error

lenge your full belief, which are entirely incompatible with his testimony; then, without imputing falsehood to him, you will charitably conclude that he was mistaken as to the time," etc., held, to be erroneous, the only witness for the State being an impeached accomplice.-Crisson v. State. 51 Ga.

597.

1 Humphries v. State, 18 Tex. App 302. On indictment for the theft of a cow, defendant introduced evidence to prove an alibi. The only charge on the question of alibi was as follows; "If the jury believe from the evidence that the defendants were at the place of B. at the time the witness F. says he saw them in the pasture in the afternoon, the defendant should be acquitted." Held, that the burden being upon the State to prove defendant's presence at the place of the theft, the charge was erroneous -Bennett v. State, (Tex. App.) 17 S. W. Rep. 545.

* *

*

2 United States v. Gunnell, 5 Mackey 196; Shropshire v. State, 81 Ga. 589; Remsen v. People, 43 N. Y. 6; Heine v. Commonwealth, 91 Pa. St. 145; Commonwealth v. Cleary, 135 Pa. St. 64.

3 Booker v. State, 76 Ala. 22.

4 People v. Bell, 49 Cal. 486.

5 State v. Daley, 53 Vt. 442; 38 Am. Rep. 694.

People v. Pollock, 51 Hun 613.

66

to instruct that "good character is a circumstance of great weight in doubtful cases, and of less weight in less doubtful cases. Thus it is error to instruct the jury that evidence of good character is of but slight weight and entitled to but little consideration when the proof is clear and direct. The jury are the sole judges of the weight of such evidence.' And it is error to charge that previous good character is not a defense as against facts positively or strongly proven and clearly indicating guilt;" or that it is insufficient to raise a reasonable doubt when, excluding such evidence, the case is otherwise made out against the accused." So, also, an instruction by which the jury are given to understand that, by reason of being indicted and put upon trial, the character of the accused "has a stain or imputation" cast upon it, and that his proof of good character was to remove this "stain or imputation," and to restore the character to its former state, is erroneous."

On the other hand, an instruction that proof of good character is not permitted to go to the jury for the purpose of

1 Johnson v. State (Neb.), 51 N. W. Rep. 835.

2 State v. Northrop, 48 Iowa 583; 30 Am. Rep. 408; Commonwealth v. Leonard, 140 Mass. 473; 54 Am Rep. 485.

State v. Lindley, 51 Iowa 343; 33 Am. Rep. 139.

4 Coleman v. State, 59 Miss. 484.

'Olive v. State, 11 Neb. 1. Where, on an indictment for the larceny of money from the person of the prosecuting witness, there was evidence tending to show that the house where the larceny was committed was a house of ill-fame, and that one of the defendants, against whom the evidence of guilt was strong, was the keeper of the house, and that the other defendants were inmates thereof, it was error to give the jury an instruction from which they might infer that because the defendants may have been partners in the crime of keeping a house of ill-fame, they might be presumed to be guilty together of the larceny committed therein.-State v. Graham, 62 Iowa 108 Respondent having introduced evidence as to his good character, and none having been offered in rebuttal, the jury were instructed that "while the people who charge a man with crime cannot establish his guilt by proving he is a man of bad character-I say, while the law forbids the people to attack his character or bring it up in court to establish his guilt, yet it does permit him to prove his good character or standing in life in defense." Held, that respondent was prejudiced thereby, as it induced the jury to believe that the people were under disadvantage, and unable to rebut such evidence.—People v. Marks, (Mich.) 51 N. W. Rep.

2

shielding the defendant from the consequences of his conduct, but simply as a circumstance to be considered by the jury along with other evidence, is proper.' And it is proper to charge that the object of evidence of good character is to assist the jury to reach a conclusion where a doubt exists as to whether defendant is guilty or not; but that previous good character can in no wise excuse defendant from the penalty of his crime, if the jury are satisfied by the proof that he committed it. So, also, instructions that previous good character is not a defense, but may be sufficient to turn the scale in defendant's favor, and that its value must be determined by the jury, are sound. And it is proper to charge that "evidence as to good character can have little practical effect against direct and satisfactory evidence as to guilt, and it cannot turn the scale against conclusive evidence."♦ Such an instruction does not withdraw from the jury evidence as to defendant's good character, where the court had previously charged that, in case of reasonable doubt as to defendant's guilt, which must be determined on all the evidence, defendant was entitled to an acquittal, and that evidence as to the good character of defendant should be considered in determining the question of reasonable doubt."

3

1 Armor v. State, 63 Ala. 173.

2 Jackson v. State, 76 Ga. 551. State v. Donovan, 61 Iowa 278.

4 State v. Spooner, 41 La. Ann. 780.

5 People v. Sweeney, 59 Hun 619. Where no evidence as to character was offered by defendant the court told the jury that the State could not introduce such evidence, but it was the right of the defendant to offer it if he chose, and that no unfavorable inference could be drawn from his failure to do so; and added that they must find their verdict upon the facts proved; held, that although the former part of the charge might by itself be objectionable, yet the error was cured by the latter.-State v. Sanders, 84 N. C. 728. In a trial for larceny from a bank, the defendant's theory, as stated in his instructions, was that the money might have been made away with by the cashier; held, that it was proper to instruct the jury, substance, that the law presumes the character of the cashier was good, and the jury should so consider it, unless there was evidence in the case showing the contrary; and that in considering the question whether he, as the custodian of the money of said bank, acted as an honest man would act, under similar circumstances, when larceny was discovered, the jury might consider such presumption raised by the law of his good character

in

§ 258. Instructions as to circumstantial evidence.Where the evidence relied on to convict is wholly circumstantial, failure to instruct the jury in regard to the law applicable to such evidence is reversible error.' And it is reversible error to instruct, on the subject of circumstantial evidence, that the verdict should be regulated by the superior number of probabilities on the one side or the other, whether the amount of such probabilities be expressed in words or arguments, or by figures and numbers.' So a charge that, where "circumstantial evidence is relied upon to sustain a conviction, each fact or circumstance necessary to establish the conclusion of guilt must be proved beyond a doubt, and the facts so proved must be consistent with each other, and with the guilt of the accused, and, when considered together, must be so conclusive as to satisfy you beyond a reasonable doubt that the defendant is guilty as charged," is erroneous because not sufficiently full. But an instruction qualifying the rule of reasonable doubt, that the jury was not required to be satisfied beyond a reasonable doubt of each link in the chain of circumstances

for honesty, together with any facts and circumstances in evidence, tending to show that he made no disposition of the missing money.-Carroll v. People, (Ill) 27 N. E. Rep. 18.

1 Willard v. State, 26 Tex. App. 126; Howell v. State, 16 Tex. App. 93; Bryant v. State, Id. 144; Allen v. State, Id 237; Kenneda v. State, Id. 258; Ramirez v. State, 20 Id. 133; Crowley v. State, 26 Id. 578; Deaton v. State, (Tex.) 13 S. W. Rep. 1009; Navarrow v. State, (Tex. App.) 17 S. W. Rep. 545. On a prosecution for the theft of cattle, alleged to be the property of one C., the evidence showed that C. owned the steers in question and the brand on them, and that defendant knew both facts; that one of the steers strayed into defendant's pasture, and ran there for two or three months to defendant's knowledge; that subsequently defendant employed one M. to meet him at his pasture, and assist in driving some cattle to another place; that when M. reached the pasture he found the cattle in a pen, those in controversy being among them; that soon afterwards defendant came, accompanied by a stranger, one G., who then sold the cattle in question to defendant, who wrote out a bill of sale to himself; that G. then changed the brands on the cattle so as to obliterate them; that defendant then drove the cattle away, and G. disappeared, and was not again seen or heard of. Held, that a conviction did not depend wholly on circumstantial evidence, and the court did not err in not charging the law applicable to such evidence. Hays v. State, (Tex. App.) 17 S. W. Rep. 940.

2 People v. Dilwood, (Cal.) 29 Pac. Rep. 420.

& Brookser v. State, 26 Tex. App. 593.