¶1The opinion of the Court was delivered by
¶2If the error assigned in the charge of His Honor the presiding Judge was confined to the admission of the testimony offered by the State, in reply to that submitted on the part of the defendant, and to the instruction which he gave to the jury in regard to the character of the offense, to be determined by the circumstances which attended its commission, we could not have interposed.
¶3When the testimony was offered to sustain the alibi on which the appellant rested his defense, it was clearly the right of the State in reply to disprove the allegations of the witnesses who were introduced to establish it. It did not add force to the facts on which the State relied to maintain the charge preferred by the indicment, but was offered to disprove the defense set up. If its effect indirectly strengthened the testimony submitted by the State to fix the offense on the appellant, it was no more cumulative than if the defense had been that the money alleged to have been stolen was not the property of Downs, as laid in the indictment, but belonged to some other person, and the Solicitor had offered testimony contradictory thereof. The evidence was competent, because it was in direct reply to the defense set up. Nor did the presiding Judge err in refusing to charge that the offense was only a trespass.
¶4He properly left it to the jury “to determine from the testimony that if the money was taken by surprise, and the defendant converted it to his own use, it was larceny.”
¶5The motives with which the goods are taken is an essential inquiry for the jury. , To make out the offense of larceny, there must be a felonious purpose. The taking must be done animo furandi— with a view of depriving the true owner of his property and converting it to the use of the offender. It may be by force or surprise, and the instruction of the Court is in conformity with what may be found laid down in Roscoe’s Evidence in Criminal Cases, p. 469. A new trial must be ordered, however, on the exception to the charge *67of the Court, which was as follows: “ Where the defense is an alibi, there must be no halting, but the defense must be proved beyond a reasonable doubt.”
¶6This would seem to be a reversal of the rule by which, in criminal cases, the law requires a j ury to be governed.
¶7The defendant is not bound ’to prove his innocence beyond all reasonable doubt. This would compel a solution of a reasonable doubt created by the evidence against the defendant; whereas if such a doubt of his guilt follows from the whole testimony, he is entitled to its benefit.
¶8The administration of the criminal law is always with humanity to those charged with its violation, and it would fall far short of the reverence in which it is justly held, if, in a case of conflicting testimony, the jury are obliged to convict because the defendant may not have proved his innocence beyond a reasonable doubt.
¶9The defense through an alibi forms no exception to the general rule. Though, as Mr. Justice Foster says, “ it ought to be heard with uncommon caution,” still, when made out, “ though negative, it is really positive evidence.”
¶10The motion for a new trial is granted.