
    [No. 17052.
    Department Two.
    June 23, 1922.]
    The State of Washington, Respondent, v. G. Rosi, Appellant. 
      
    
    Criminal Law (263)—Trial—Instructions—Comment on Facts. Upon an issue as to an alibi, it is not unlawful comment on the evidence, in instructions to the jury, to refer to the “incriminating evidence introduced by the state,” where the jury were repeatedly instructed that they were the sole judges of the facts.
    Same (82)—Burden of Proof—Hatters of Defense. Upon an issue as to an alibi it is proper to instruct that the burden is upon the accused to support his defense to' the extent of establishing- a reasonable doubt as to his guilt.
    Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered October 15, 1921, upon a trial and conviction of being a jointist.
    Affirmed.
    
      A. B. Bell and Harry E. Phelps (James F. O’Brien, of counsel), for appellant.
    
      J. W. Selden, T. F. Ray, and J. A. Sorley, for respondent.
    
      
      Reported in 208 Pac. 15.
    
   Holcomb, J.

— Two errors are assigned by appellant to obtain a reversal of tbe verdict and judgment of guilty in the court below.

Tbe first is based upon an instruction to tbe jury, excepted to by appellant, and tbe second is based upon tbe refusal of tbe court to grant a new trial for tbe alleged error contained in tbe instruction assailed.

Tbe instruction complained of is as follows:

“A defense interposed by tbe defendant in this case is an alibi; that is, that tbe defendant was at another place at tbe identical time tbe crime was committed, if committed at all.
“When tbe state makes out such a case as would sustain a verdict of guilty and tbe defendant offers evidence, tbe burden is upon him to make out bis defense as to an alibi, but it is not incumbent upon him to prove an alibi beyond a reasonable doubt; and when tbe proof is all in, both that given by tbe state and for tbe defendant, then tbe primary question is (tbe whole evidence being considered), is the defendant guilty beyond a reasonable doubt? Tbe law being that, if after you have considered all tbe evidence, as well that touching tbe alibi as tbe incriminating evidence introduced by tbe state, you have a reasonable doubt of tbe guilt of tbe accused, you should acquit and if you have not you should convict.”

Tbe error urged is that tbe court alluded to tbe evidence introduced by tbe state as “incriminating” in tbe above instruction. It is insisted that tbe use of tbe word “incriminating” constituted a comment upon tbe evidence forbidden by § 16, art. IY, of tbe constitution of Washington, providing that “Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.”

It is asserted by appellant that tbe trial court invaded tbe province of tbe jury and commented upon the facts of tbe case sufficient to convey to their minds that, in his opinion, witnesses had testified to facts incriminating the appellant. State v. Walters, 7 Wash. 246, 34 Pac. 938, 1098, is relied upon to sustain this contention.

In that case, in one instruction, using the words ‘ tending to incriminate ’ ’ in referring to witnesses who had testified to facts in the case, and the use of the words “incriminating evidence” in another instruction relating to the possession of stolen property, were considered unlawful comments upon the facts by the trial court, for which the conviction was reversed.

Later, however, in State v. Surry, 23 Wash. 655, 63 Pac. 557, the same judge who wrote the opinion in the case of State v. Walters, supra, restricted its application by the following language:

“While we are not disposed to overrule the prior decisions of this court as to the object and scope of this constitutional provision, we are not prepared to extend the rule enunciated in those cases so far as to hold that every casual, inadvertent or unnecessary remark made by the judge in reply to a proposition or suggestion of counsel constitutes a sufficient ground for reversing the judgment. In our opinion, it is only such remarks of the presiding judge during the course of a .trial as might reasonably influence the mind of an ordinary juror that can justly be said to be inimical to the constitution. And whether error has been committed in a given case must, therefore, depend upon the particular facts and circumstances therein disclosed.”

In the later case of State v. Manderville, 37 Wash. 365, 79 Pac. 977, which was a prosecution for homicide, an instruction was given on the matter of the reputation of the defendant almost identical with the instruction given in State v. Walters, supra, on that matter, and using the word criminating in alluding to the testimony of witnesses, we said:

“But, after careful consideration, we' are convinced that, while this instruction is open to criticism, it nevertheless does not constitute reversible error in this case. An examination of the statement of facts shows that, among other instructions which carefully guarded the rights of the defendant, the trial court gave the following:
“ ‘Under the constitution and laws of this state, the jury are the sole judges of the facts, and the judge is prohibited from commenting upon the facts. Therefore, if in ruling upon objections, or in answering questions asked by counsel for either the state or defendant, or in any other way, or under any other circumstances, the court has commented upon the testimony in this case, the court instructs you that you are to disregard entirely any and all such comment by the court, if any has been made.’
“In the case of State v. Walters, supra, it does not appear that this warning instruction was given.”

In the case at bar, the jury were repeatedly instructed that they were the sole judges of the facts, and of the force and effect they should give to the testimony of each witness; and that, “if in the trial of the case, or in the instructions the court seems to have commented upon any question of fact, or upon the evidence, it is not intended by the court and should be disregarded by the jury. That the court’s responsibility was with the law, and the jury’s with the facts, of which they were the sole judges.”

These instructions bring this case within the rule in State v. Manderville, supra. The judgment is not, therefore, reversible for the cause claimed.

It is also urged that the same instruction was erroneous in that part reading as follows:

“When the state makes out such a case as would sustain a verdict of guilty and the defendant offers evidence, the burden is upon him to make out his defense as to an'alibi, but it is not incumbent upon him to prove an alibi beyond a reasonable doubt;”

It is urged tbat tbe objectionable matter of this instruction is tbat it shifts tbe burden of proof to tbe defendant to prove a negative, to wit: tbat be was not at tbe place where tbe crime was committed, if committed. Tbe premise stated by appellant in support of this contention is incorrect, namely, that it shifts tbe burden of proof to tbe defendant of proving a negative. When appellant offered tbe defense of an alibi be offered tbe defense tbat be was at another place at tbe time tbe crime was committed, if committed at all. Tbat is tbe meaning of an alibi. Tbat is tbe statement of an affirmative proposition, tbat is, tbat at tbe time alleged be was at another place, and it has therefore always been held tbat tbe burden is upon him to prove bis proposition that he was at another place at tbe time tbe crime was committed, if committed at all, to tbe extent stated by tbe trial court in its instruction, namely, tbat it is not incumbent upon him to prove an alibi beyond a reasonable doubt, but tbat when tbe proof is all in, both tbat given by tbe state and tbe defendant, then the primary question is (tbe whole evidence being considered), is tbe defendant guilty beyond a reasonable doubt? And if tbe jury, after considering all of tbe evidence, both for tbe state and tbe defendant, have reasonable doubt of tbe guilt of tbe accused, they should acquit.

As to all such affirmative defenses we have always held tbat tbe burden is upon tbe accused to support bis defense to tbe extent of establishing a reasonable doubt in tbe minds of tbe jurors as to tbe guilt of the accused of tbe crime charged.

Thus in State v. Melvern, 32 Wash. 7, 72 Pac. 489, we held tbat, where homicide is proven beyond a reasonable doubt, tbe presumption is that it is murder in tbe second degree, and if tbe defendant would reduce it to manslaughter the burden is upon him to establish it. This has been followed in a long line of cases unnecessary to cite.

In State v. Clark, 34 Wash. 485, 76 Pac. 98, 101 Am. St. 1006, a prosecution for murder, where the defense interposed was insanity, we held that the burden was upon the defendant to establish the defense by a preponderance of the evidence.

In State v. Eubank, 33 Wash. 293, 74 Pac. 378, we held that, where animals are allowed to run on the range, proof of possession of the animal puts the burden upon the defendant of explaining such possession. See, also, Wharton’s Criminal Evidence (9th ed.), §333.

We find no error, and the judgment is affirmed.

Main, Mackintosh, and Hovey, JJ., concur.  