
    STATE v. ANDERSON.
    1. Criminal Law — Challenges.—In trial on indictment for stealing cow of value of $15, State is only entitled to two peremptory challenges.
    2. Ibid. — Alibi—Reasonable Doubt. — The defense of alibi must be sustained by preponderance of all the evidence thereon, after the State has proved its case beyond a reasonable doubt on all the testimony.
    3. Ibid. — Time—Larceny.—In cases of larceny, the State is not required to prove that the offense was committed at exact date laid in indictment, but must show that it was committed before finding of bill.
    Before Aldrich, J., Greenwood, August, 1900.
    Reversed.
    Indictment against William Anderson for stealing a cow valued at $15. From judgment in Sessions Court, defendant appeals.
    
      Messrs. Gray don & Giles, for appellant,
    cite: As to challenges: 30 S. C., 69. As to the establishing of the defense of alibi: 18 S. C., 520; 36 S. C., 487.
    
      Mr. U. X. Gunter, jr., assistant attorney general, contra.
    
      February 11, 1901.
   The opinion of the Court was delivered by

Mr. Justice Jones.

The defendant was convicted under an indictment for larceny of live stock, a cow, alleged to be of the value of $15.

1. The State, over defendant’s objections, was allowed five peremptory challenges to jurors, and this ruling is excepted to as error. We think the Circuit Court erred herein. The right to exercise peremptory challenges to jurors is regulated by statute appearing as section 54 of the Criminal Statutes, which allows the State not exceeding five such challenges in cases wherein any person is arraigned for murder, manslaughter, burglary, arson, rape, grand larceny or forgery; and in all other cases not exceeding two such challenges. ' Larceny of a-cow of the value of $15 is not grand larceny, although made punishable under section 146, Criminal Statutes, in more severe terms than prescribed in section 160 for larcenies of other articles under the value of $20. In the case of State v. Moore, 30 S. C., 71, the Court held that a defendant was not entitled to an arraignment under an indictment for the larceny of a cow alleged to be of the value of $15, notwithstanding grand larceny is an offense in which arraignment was necessary. In other words, that such an indictment is not for grand larceny. The offense charged in the indictment in this case must, therefore, fall under the class of cases in which not exceeding two peremptory challenges are allowed to the State.

2. On the trial the defendant introduced evidence to prove an alibi, and in reference to this matter the Circuit Court charged -the jury: “Where the defendant enters a general plea of not guilty — that is, a denial of the State’s entire case — it puts the State upon proof of the case,-of the charge. If he goes on further, and enters a special plea — for instance, an alibi — then the defendant assumes the burden of proving that special plea, not beyond a reasonable doubt but by the preponderance — the greater weight — of the testimony.” It is excepted that this charge was erroneous, “a. In misleading the jury into supposing that the defense of alibi is an affirmative defense like insanity and self-defense; whereas, it is respectfully submitted that an alibi is not a special affirmative defense, 'but a mere fact shown in rebuttal of the State’s case. b. In instructing the jury that the defendant must establish his plea or defense, if alibi, by a preponderance of the evidence, thus requiring- him to prove 'his innocence of the crime charged, instead of charging that the burden of proof rests on the State all through the case. c. In not instructing the jury that it is sufficient to entitle the defendant to a verdict of not guilty that the evidence of alibi should raise a reasonable doubt as to the guilt of the defendant, d. In confounding the defense of alibi, which is a mere fact in rebuttal of the State’s case, with special defenses, such as insanity and self-defense, which confess the doing of the act, but deny the malice charged in the indictment.”

In addition to the foregoing charge, the Circuit Court explicitly instructed the jury that “it is the duty of the State to prove every material allegation in an indictment, 'beyond a reasonable doubt, and the defendant is entitled to the benefit of any reasonable doubt growing out of the testimony;” and at .the close of the charge the Court reiterated that “the defendant is entitled to the benefit of any reasonable doubt growing out of all the testimony in the case.” In view of these instructions and the cases of State v. Nance, 25 S. C., 173, and State v. Jackson, 36 S. C., 492, we do not think the Court in this matter committed reversible error. These cases seem to treat an alibi as a special defense, to be supported by a preponderance of the evidence, just as the plea of insanity is treated in State v. Paulk, 18 S. C., 515, and State v. Bundy, 24 S. C., 442; but all the cases recognize that such, rule is subordinate to the cardinal rule in criminal cases, that the State must prove every element of the crime charged beyond a reasonable doubt. In criminal cases, “the preponderance of the evidence” is with the defendant, when the evidence raises a reasonable doubt of his guilt; since the case of the State is thereby overthrown in State v. Paulk, supra, approved in State v. Bundy, supra, the rule in this State is thus expressed: “Where the State fully proves a prima facie case, and a special defense such as insanity, alibi, &c., is interposed, it must be established only by such a preponderance of evidence as will satisfy the jury that the charge is not sustained beyond all reasonable doubt.” Such was the practical effect of the charge, treated as a whole.

3. The following charge by the Court is excepted to: “Time is not what we term of the essence of a crime, when a theft or other criminal offense is charged to have been committed at a certain time. The gist of the charge does not consist in proving that it was done at the exact time laid in the indictment. The gist-is whether or not the crime as alleged was committed; and if the State proves that it was committed at any time, the particular charge contained in the indictment, prior to the finding of the true bill, that would be sufficient; but the State must prove the charge as contained in the indictment. It is not necessary, and the State is not required to prove the exact time laid in the indictment; but still it must prove that substantive charge as having- been committed at some date certainly before the finding of the true bill.” This charge was in accord with well settled law. State v. Reynolds, 48 S. C., 384.

The judgment of the Circuit Court is reversed.  