¶1(dissenting).
¶2The principal opinion holds it was reversible error to refuse defendant’s instruction F which in substance told the jury that if they did not find and believe beyond a reasonable doubt that the defendant “is the person who presented the check mentioned in evidence” they must acquit her.
¶3The opinion asserts the defendant presented “two defenses” in denying that she *761was the person who presented the check and by her evidence that she was confined to her home by illness at the time in question. It further states that she “relied almost wholly on a theory of defense that she was erroneously identified as the person guilty of the offense.” The term “theory” does not ordinarily refer to the facts established by the evidence, but to a cause of action or defense. State ex rel. Brotherhood of Locomotive Firemen, etc. v. Shain, 343 Mo. 666, 123 S.W.2d 1, 4 [4],
¶4As we see it, the defendant’s only “theory ■of defense” was that she was not the criminal agent, and that theory is fairly and fully presented by her alibi instruction, No. 3, which is set out in the opinion. In explaining the defense, the instruction states that “even if the offense was committed as charged, she was, at the time of the commission thereof, at another and different place than that at which such offense was committed, and, therefore, was not and could not have been the person who committed the same. Now, in this connection, you are instructed that you should acquit the defendant unless the evidence in the case, taken as a whole, including that of alibi, establishes the defendant’s guilt beyond a reasonable doubt.” Italics added.
¶5The clause that she “was not and could not have been the person who committed” the offense comprehends the theory of defense contained in instruction F that she was not “the person who presented the check.” Furthermore, the direction in instruction No. 3 to acquit her unless the evidence, taken as a whole, including that of alibi, establishes the defendant’s guilt beyond a reasonable doubt adequately covers all that could be included in instruction F. An alibi instruction goes to the very heart of the defense of criminal agency. State v. Beishir, Mo., 332 S.W.2d 898, 902-903 [5].
¶6Instruction F was primarily an attack on the credibility of the evidence in support of a phase of the state’s case and did not present any new or different theory of defense; hence, the trial court did not err in refusing it because the instructions given fully and fairly covered the entire subject matter. State v. Engberg, Mo., 377 S.W.2d 282, 286 [11], 287 [12]; State v. Worten, Mo., 263 S.W. 124, 126 [4].
¶7Furthermore, instruction F tends to emphasize and comment on a particular part of the evidence on a necessary element of the state’s case so as to cast doubt on its credibility thereby rendering the instruction improper. State v. Higginbotham, 335 Mo. 102, 72 S.W.2d 65, 68 [2].
¶8For these reasons I respectfully dissent.