
    State v. Peter Manning.
    May Term, 1902.
    Present: Rowell, C. J„ Tyler, Munson, Start, Watson and Haselton, JJ.
    Opinion filed August 21, 1902.
    
      Criminal law — Fabricated alibi — Instruction.
    A fabricated alibi is a criminative circumstance and an inferential admission of guilt, but not conclusive, and a charge calculated to mislead tbe jury into supposing that they were bound to convict if they found tbe alibi false, is error.
    Indictment for rape. Plea, not guilty. Trial by jury at the December Terml, 1901, Windsor County, Stafford, J., presiding. Verdict, guilty. Judgment and sentence thereon. The respondent excepted.
    That part of the charge excepted to- is as follows:
    “If you find the defence, or attempted defence, is a false one, of course he knows it, and,if you should.be satisfied it is false, that would be evidence tending to show that he is guilty, because if he were not guilty, he would not attempt, probably, to put in a false defence. So whenever an alibi is attempted to be proved and is false, it may be treated by the jury as positive evidence of guilt. But it is a question for you to say whether upon the evidence you have a reasonable doubt about his having been there at the time claimed, and if you have a reasonable doubt, as I said before, he is entitled to the benefit of it, and entitled to be acquitted.”
    
      Gilbert A. Davis for the respondent.
    It was error to charge that the attempt to prove an alibi and that attempt failing, was “positive” evidence of guilt. “Positive” evidence, is evidence to the precise point in issue, as in the case of homicide, that the accused caused the death. Com. v. Webster, 5 Cush. 310; People v Cronin, 34 Cal. 202; People v. Morrill, 60 Cal. 144, 2 Rice Ev. 767.
    As said by RedEiEed, C. J., in State v. Williams, 27 Vt. 726, the introduction by the respondent of a fabricated alibi “has no direct tendency to establish the main charge.” To the same effect is State v. Ward, 61 Vt. 194; 1 Best on Ev. s. 27; 1 Greenl. Ev. 13.
    
      Chas. P. Tarbell., State’s Attorney, for the State.
    A false alibi is evidence of guilt and has been too many times so held to be successfully questioned now. The charge was correct. Whar. Crim. Law, 715; State v. Williams, 27 Vt. 724; State v. Wood, 61 Vt. 153; State v. Totten, 72 Vt. 73.
   RowEEE, C. J.

The prisoner set up an alibi. The court charged that if he fabricated it, the jury had a right to consider that as positive proof of guilt. Although there may be no erroneous statement of legal principle in this, it was such a failure adequately to present the law’s view of a fabricated alibi as criminative evidence as to call for a reversal, for it was calculated to mislead the jury into supposing that in the event named it was bound to convict. The law says that a fabricated alibi is a criminative circumstance, and an inferential admission of guilt, but not conclusive. State v. Ward, 61 Vt. 153, 194, 17 Atl. 483. Mr. Bishop says that a failure in the proof of an alibi, while in special circumstances, such as where it discloses an attempt to mislead by false evidence, it may justly prejudice the prisoner’s case,- — is not otherwise more significant than the like failure in any other part of his proof. 1 Bish. New Crim. Proced. § 1063.

Judgment and sentence reversed, verdict set aside, and came remanded for a new trial.  