
    The State v. McCracken.
    1. Criminal Law: evidence or non-identity: effect or: instruction. Evidence of' the non-identity of the defendant should be considered like any other evidence, under the rule that the state must establish guilt beyond a reasonable doubt; and an instruction directing a special consideration of such evidence held confusing and misleading.
    2. -: evidence or alibi: errect or: instruction. If the defendant establishes an alibi by a preponderance of the evidence, (see State v. Hamilton, 57 Iowa, 596,) he should be acquitted; and an instruction to the effect that the established fact of alibi, (if it were established,) should be considered in connection with other facts and circumstances, held confusing and misleading.
    3. Instruction: too favorable to appellant: no ground for reversal. An instruction, though erroneous, is no groundfor reversal, where the error is in appellant’s favor.
    4. Criminal Evidence: alibi: statements or defendant: res gestas. A defendant may not be allowed, for the purpose of proving an alibi, to show what he said on his return home, as to where he had been during his absence.
    
      Appeal from Marshall District Court.
    
    Saturday, June 13.
    The defendant was convicted upon a charge of stealing a horse from one Buchanan, in Marshall county, and sentenced to imprisonment in the penitentiary for two years. He appeals.
    
      J. PL. Bradley, for appellant.
    
      Smith McPherson, Attorney-general, for the State.
   Adams, J.

I. The state relied principally upon evidence tending to show that the defendant was seen in the possession of the stolen horse the next morning after he was stolen. To rebut the evidence of the state, the defendant introduced evidence tending to show that on the night of the theft he was several miles distant from the place of the theft, and also that at that time his personal appearance in respect to having a mustache, etc., differed from that of the person seen in possession of the stolen horse. As touching the evidence of non-identity and alibi, the court gave an instruction in these words: “While it is necessary for the state to prove the material allegations of fact of the indictment beyond a reasonable doubt, yet, in the establishment of affirmative facts on the part of the defendant, such as facts pertaining to the personal appearance or identity of defendant, or whether he was or could have been at the time when and place where the offense was committed, if it was committed, it is sufficient if such facts are shown by a preponderance- of the evidence, which is deemed by the jury reliable and credible, a,nd of any weight; and so considering such fact, with all the other facts and circumstances in the case, if there is reasonable doubt of the defendant’s guilt, he should be acquitted.” The .giving of this instruction is assigned as error.

We are not certain that we have a correct understanding of this instruction. But we think that we may say that the court regarded the non-identity of the defendant with the real thief, or with the person seen in possession of the stolen property under such circumstances as to be presumptively the thief, to be a fact available to the defendant to some extent, if shown by a preponderance of evidence, and otherwise not; and that, if thus shown, it might be considered in connection with other facts and circumstances; and, if sufficient, when thus considered, to raise a reasonable doubt of guilt, the defendant should be acquitted. But in our opinion evidence of non-identity should be treated like any other evidence offered by the defendant for the purpose of showing that he did not steal the horse. It was merely evidence in rebuttal. It might have the effect to raise a reaspnable doubt of guilt, though not preponderating over that offered by the state. We may say also that, though preponderating, it might not have the effect to raise a reasonable doubt of guilt, if offered simply upon the question as to the identity of the defendant and the person seen in possession of the horse. The jury might believe that the defendant was not the person seen in possession, and still convict, if-other evidence in the case warranted a conviction. It appears to us, therefore, that, so far as the question of identity was concerned, the instruction in regard to a preponderance of evidence had no proper place, and could serve only to confuse and mislead.

As to the matter of alibi, it may be conceded that under State v. Hamilton, 57 Iowa, 596, the evidence should preponderate. But, conceding this, we have still to say we do not think that the instruction given in reference to alibi can be sustained. If the jury should regard the evidence of alibi as preponderating, their belief would be that the defendant was where he could not have committed the crime, and, having reached that conclusion, an acquittal should follow of course. The instruction proceeded upon the theory, as we understand it, that the established fact of alibi (if it were established) would be a fact to be considered in connection with other facts and circumstances. We think that the instruction in this respect was calculated to confuse and mislead.

II. There was evidence tending to show that the defendant came into possession of the stolen horse, and traded it the next morning after it was stolen to one Milligan ° o ^01' a gray mare, and afterwards traded the mare to one Miller for a pony, and afterwards sold the pony; that the persons with whom he traded were all strangers to him; that the trades were made in different parts of the county, and all within the space of about one week. The possession of the Miller pony was proven by undisputed evidence. The court, in instruction eight, told the jury, in substance, that the possession and sale of the Miller pony might be considered as a circumstance in connection with the other circumstances, and so far the instruction is not complained of. But in the same instruction the court proceeded to say: “ If you believe that the explanation of the defendant’s possession of the pony, if he made such explanation, to the witness Stultz, reasonable, or probable, or true, then defendant’s possession of the pony, if he had such possession, can have very little, if any, weight in the case.” Stultz had testified that the defendant told him that he purchased the pony of a man near Union for fifteen dollars. The defendant contends that, if this explanation was true, then his possession of the pony was not a circumstance against him, and should have no weight, either alone or in connection with any other circumstance in the case. And he contends that the instruction carried an implication that, though the explanation were true, the circumstances might have a little weight against him. To this we have to say that we find no evidence tending to show that the explanation was true; and so far as the instruction assumed that there was, it was too favorable for the defendant. We see nothing in this of which the defendant can properly complain.

III. For the purpose of proving an alibi, the defendant offered to prove by a witness what the defendant at a certain time said as to where he had been. The cour^ • excluded the evidence as hearsay. The defendant contends that it was proper, because it was a statement made by the defendant upon his return to liis place of residence, and was, therefore, a part of the res gestae. But in our opinion it would be going too falto bold it such. The defendant cites 1 Greenl. Ev., § 108, in which it said in substance that when a person leaves home, or returns, his declaration made at the time, and expressive of the character, motive, or object of the act, is admissible as evidence. But the declaration in this case was a mere statement of a past event. It was offered to prove something antecedent to his return, and in no way pertaining to the character, motive, or object of his return.

For error in giving the instruction first above set out, the judgment must be

Reversed.  