¶1I must dissent from the opinion, in so far as it sustains the entire correctness of the instructions to the jury. In my opinion, a distinct error was committed in instructing the jury that the prisoner’s defense of an alibi should be established to the satisfaction of the jury. This error was not cured or removed by the remainder of the charge. That rule would preclude the jury from giving the prisoner the benefit of any reasonable doubt in their minds, because it would require them to be first satisfied of the truth of that defense. Ho such strict rule is sanctioned by authority or in principle. To be satisfied of the truth of a matter is to cease to entertain doubts. If we are satisfied, it is from a conviction which leads to that state of mind. In such cases the burden is upon the prosecution to establish affirmatively the guilt'of the accused, and, upon all matters needed to be proved to constitute the guilt, any reasonable doubt which the jury may entertain upon the conclusiveness of such proofs by the people must be resolved in the prisoner’s favor. If the doubt is reasonable,—that is, if it arises upon the evidence,—the jury should give the benefit of it to the defendant. If the instructions to the jury are susceptible of conveying a different impression, the prisoner’s rights have been prejudiced, and he should have a new trial, with correct instructions. Especially is this just and right in such a case as this, where the proofs as to the presence of the prisoner are not only sharply conflicting, but where some of the witnesses for the prosecution seem to have varied in their evidence upon the several trials of the prisoner. The only issue tendered was upon his identity with the person who committed the murder. Two previous juries had divided equally with respect to the question, and I believe this is peculiarly an instance, in view of all the circumstances, where justice demands that the case of the prisoner should be given to the jury without any obscur*441ity in, or doubt about, their instructions as to the law governing his rights. They should be distinctly informed that the prisoner was entitled to the benefit of any reasonable doubt which they might entertain with respect to his defense of an alibi. Because it is impossible for us to say that the jury may not have derived an erroneous impression upon that question from the judge’s instructions,'and for the reasons briefly expressed, I believe that justice requires ■a new trial.
¶2The result of the charge was to say to the jury that, if there was a reasonable doubt on the whole case, the defendant was entitled to an acquittal, but no doubt arose unless the jury were satisfied of the truth of the testimony relative to the alibi. This, I think, was error.
¶3I agree with Jndge Gray in believing that a new trial should be granted.
¶4Note on Alibi.
¶5Some authorities will be found on alibi as a defense in a note to the case of People v. Kelly, 3 N. Y. Crim. Rep., at page 49. In addition to those there cited, the following are some recent cases of importance on the question:
¶6Where in a criminal action the only defense is an alibi, and there is evidence to support it, the court should instruct the jury that if they have a reasonable doubt whether the defendant was present at the time and place of the act charged, or was so near thereto as to have done the same, they ought to acquit. State v. Kelly, 16 Mo. App. 213.
¶7Proof of an alibi by preponderance of evidence justifies an acquittal. An instruction that the fact of an alibi, if established, should be considered in connection with other facts and circumstances is confusing and misleading. State v. McCracken, 66 Iowa, 569.
¶8In a trial for larceny the alibi relied upon by defendant must be established by a preponderance of the testimony. State v. Rowland, 72 Iowa, 327. And in a trial for murder. People v. Lee Sare Bo, 72 Cal. 623.
¶9*442"Where on indictment for larceny, witnesses testify to the defendant being the person who committed the offense, and about an equal number testify to his being at a place other than that at which the larceny occurred, a verdict of guilty must depend on the jury’s opinion of the credibility of the witnesses, and a judgment based on such verdict will not be reversed. State v. Falconer, 70 Iowa, 416.
¶10To make mere distance from the scene of action a conclusive answer as an alibi, it must be shown to be so great as to render it impossible for the respondent to have participated in the act. State v. Fenlason, 78 Me. 495.
¶11Where defendant in a prosecution for murder sets up an alibi, such defense must be proved by a preponderance of evidence. People v. Lee Sare Bo, 72 Cal. 623.
¶12An instruction that, “to render proof of an alibi satisfactory, the evidence must cover the whole time of the transaction in question, so as to render it impossible that defendant setting up-such defense could have committed the act,” is liable to mislead the jury, and is ground for new trial. Wisdom v. People, 11 Colo. 170.
¶13In the absence of evidence as to when the crime was committed, and where defendant was at the time; it is not error to refuse to-instruct the jury on the subject of alibi; that hot having been made an affirmative defense. State v. Jackson, 95 Mo. 623.
¶14The court, in one instruction, directed the jury that the alibi relied on as a defense must be established by a preponderance of evidence, and in another told them in effect that if, upon the whole evidence, including that tending to establish the alibi, they entertained a reasonable doubt, they should acquit. Meld, not contradictory. State v. Maher, 74 Iowa, 77.
¶15An instruction that ‘ ‘ the defense of alibi, to be entitled to consideration must be such as to show that at the very time of the commission of the crime charged, the accused was at another place, so far away or under such circumstances that he could not, with any ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof,” poes not exclude from the jury the evidence pertaining to the alibi, and is proper. Id.
¶16"Where an alibi is set up as a defense, it is not prejudicial error to charge that, when the people make out such a case as would sustain- a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defense; and as to an alibi and all other like defenses, that tend merely to cast a reasonable doubt on the case made by the people, when the proof is in, then the primary *443question is (the whole evidence on both sides being considered)whether defendant is guilty beyond a reasonable doubt; the law-being that when the jury have considered all the evidence, as well that touching the alibi as the criminating evidence introduced by the prosecution, then if they have any reasonable doubt of the guilt of the accused they should acquit, otherwise not. Ackerson v. People (Ill.), 16 N. E. Rep. 847.
¶17On trial for stealing a horse, one witness testified that he saw-defendant at S. at about 2 p.m. There was evidence that he was seen riding the horse at two places between 3 and 5 the same afternoon. A charge was asked, directing an acquittal, unless the jury believed that defendant was not at S. at the time named. The-evidence did not show the distance between the places. Held, that there was no error in refusing the charge. Burger v. State, 83 Ala. 36.
¶18Where there is testimony tending to sustain the defense of alibi, interposed by one of the defendants, it is proper to instruct the jury as to the law of such defense; but where the defendant is prosecuted with others upon the theory that all conspired together to commit the crime, and there is testimony supporting it, a direction to the jury that if they found that one of the defendants was not actually present when the crime w’as committed, they should acquit him is properly refused. State v. Johnson (Kan.), 40 Kans. 266.
¶19An instruction that the defense of alibi is .often resorted to by guilty persons as well as innocent ones,- and one in which perjury, mistake, and deception are often committed, is error. State v. Chee Gong, 16 Or. 534.
¶20An instruction that the burden of proof is on the defendant to make out the defense of an alibi, the State having first introduced proof and showm that the defendants were present at and committed the alleged fatal assault, is error. Id.
¶21Where an alibi is not the sole defense, the omission of the court to charge specially upon such defense is not reversible error, unless the court is requested so to charge or unless the charge was directed to such omission. Ryder v. State, 26 Tex. App. 334.
¶22On a trial for larceny, instructions were given that an alibi relied on as a defense must be established, if at all, by preponderance of evidence, and that if upon the whole evidence, including that tending to establish the alibi, the jury entertained a reasonable doubt they must acquit. Held, that the instructions were not inharmonious or misleading. State v. Maher, 74 Iowa, 77.
¶23Where defendant sets up an alibi, it is not error to charge that the burden of proving it is on him, and that an. alibi “is valueless-*444as a complete defense,” unless proved “to the satisfaction of the jury,” where immediately afterwards the court adds : “ But an alibi is as much a traverse ... as any other defense, and proof tending to establish it . . . may with other facts of the case, raise a reasonable doubt of the guilt of the accused.” Rudy v. Commonwealth (Penn.), 18 Atl. Rep. 344.