
    32442.
    ALLEN v. THE STATE.
   Jordan, Justice.

John Allen, Jr., was convicted of armed robbery and given a sentence of 15 years. He appeals from the denial of his motion for new trial, as amended.

Two questions have been argued in this court: (1) whether the evidence was sufficient to support the verdict; and (2) whether the charge as a whole gave the impression that the appellant had the burden of proving his defense of alibi beyond a reasonable doubt.

1. The appellant was positively identified by the victim of the armed robbery. There is no merit in the contention that the general grounds of the motion for new trial should have been sustained.

Argued June 15, 1977

Decided June 28, 1977

Rehearing denied July 14, 1977.

Joseph O. Saseen, Harvey Weitz, for appellant.

Andrew J. Ryan, III, District Attorney, William H. McAbee, II, Chief Assistant District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee.

2. It is conceded by the appellant that the judge gave a correct charge on alibi, but it is contended that the repetition in the whole charge that the appellant’s guilt must be proved beyond a reasonable doubt led the jury to believe that the appellant had the burden of proving alibi beyond a reasonable doubt.

There is no merit in this contention. After giving a correct definition of alibi, the judge charged: "I charge you further that when testimony on a subject of alibi is offered on a trial of a case, it is the duty of the jury to take that testimony along with all the other evidence in the case in determining the guilt or innocence of the defendant. And if considering the testimony alone or along with all the other evidence in the case the jury should entertain a reasonable doubt as to the guilt of the defendant it is their duty to give him the benefit of the doubt and to acquit. The law being, as I have previously stated, that in order to convict, you must believe the defendant guilty beyond a reasonable doubt.”

In view of this instruction, the jury could not have understood that the appellant had any burden of proof in establishing alibi.

Judgment affirmed.

All the Justices concur.  