
    Allen Dawson v. The State.
    1. Ai.ibi. Discredited as a defense. Erroneous instruction.
    
    Where the defendant in an indictment relies upon the defense of an alibi, it is error for the court to discredit, such defense by charging the jury that the evidence thereof “ should be weighed with great caution, because it is a defense easily fabricated and often attempted by contrivance or perjury,” even though the instruction declare that such defense when “ established by the evidence is a good and complete legal defense.”
    2. Same. How regarded as a defense.
    
    Such defense should be treated as any other, and not disparaged or prejudiced in the court’s instructions to the jury.
    
      3. Criminal Law. Proof of defense. Instruction.
    
    An instruction which requires a defendant on trial for a criminal offense to make out his defense “to the satisfaction of the jury” is erroneous. Whatever may be the character of the defense, it is sufficiently established if, upon consideration of all the evidence, there is a reasonable doubt of the guilt of the accused. Ingram, v. The State, ante, 142, died.
    
    Appeal from the Circuit Court of Yalobusha County.
    Hon. W. S. Feathekston, Judge.
    Alien Dawson, having been convicted, of arson, appealed to this court and assigned for error, together with other assignments not noticed by this court, the action of the court below in giving the third instruction for the State. That instruction.is set forth in the opinion of the court.
    
      Slack & Longstreet, for the appellant.
    Instruction No. 3 for the State is a charge upon the weight of evidence and is erroneous. Thomas v. The State, 61 Miss. 65; Simmons v. The State, lb. 244; Allen v. The State, 63 Ind. 589. If the defense of an alibi is good when proved, it is extremely wrong to tell the jury that it is good when proved, but to handicap it with the qualification “ that such testimony should be weighed and considered with great caution,” etc. The circuit court by this instruction virtually said to the jury, “ An alibi is good, but we don’t think one has been proved in this case, and you must bestow more care in determining this than any other fact. It requires extra scrutiny from, you.” In Simmons v. The State, 61 Miss. 259, speaking of the defense of an alibi, the court say, “ This defense is like any other, and should be left to the jury uninfluenced by instruction calculated to excite prejudice against it or throw discredit upon it.”
    
    
      We respectfully submit that this instruction is much calculated to raise a great, distrust in the minds of the jury and to cast great suspicion upon the defense of the alibi. We know of no rule of law which attaches a suspicion to evidence tending to prove an alibi any more than it does to evidence tending to prove any other fact. It was a criticism upon the particular evidence wrong in principle and naturally operating to its prejudice and hurt. The poison was instilled by the criticism, and the antidote administered in the conclusion of the instruction was not sufficient to counteract its effects.
    
      J. L. Harris, for the State.
    The instruction complained of is an exact transcript of the one given in Nelms v. The State, 58 Miss. 362, with the addition which, in that case, the court said would make it a good charge.
    It is different from the charge held bad in Simmons v. The State, 61 Miss. 243. There the defense was “to be viewed with peculiar suspicion and distrust,” because of “ the ease with which it may be fabricated and sustained by false testimony and the difficulty with which such fraud and perjury are detected.”
    In the case at bar the jury are merely cautioned to consider the defense with great care, because, etc., and no especial distinction is made between it and any other defense.
   Arnold, J.,

delivered the opinion of the court.

The third instruction given for the State and to which appellant excepted is in these words : The court instructs the jury that if testimony has been offered to establish an alibi, or the absence of the defendant at the time the crime is charged to have been committed, that such testimony should be weighed with great caution in connection with all the evidence in the case, because it is a defense easily fabricated and often attempted by contrivance or perjury; but when it is fully and satisfactorily established by the evidence to the satisfaction of the jury, it is a good and complete legal defense to the prosecution and entitles the defendant to an acquittal.”

There is error in this instruction, and we find nothing in the other instructions to counteract or remove its dangerous character and tendency, and we are compelled to reverse for this reason.

In Nelms v. The State, 58 Miss. 362, an .instruction to the jury which discredited the defense of an alibi was condemned, but it was intimated that the error would have been cured if the jury had also been informed that when fully and satisfactorily proven, an alibi was a perfectly good and legal defense. In Simmons v. The State, 61 Miss. 243, the intimation referred to in Nelms v. The State was repudiated, and it was declared tbat tbe defense of an ahili was like any other defense, and should be left to the jury uninfluenced by charges from the court calculated to disparage or excite prejudice against it. We adhere to the opinion in the latter case and to the qualification therein imposed on Nelms v. The State.

The instruction in the case before us also informed the jury that the defense of an alibi must be fully and satisfactorily established, to the satisfaction of the jury, before it was a good and complete defense. Such is not the law of the land in which we live. The defendant is not required, in' any phase, of any criminal case, to prove his defense to the satisfaction of the jury, but it is sufficiently established if, upon consideration of the whole evidence, there is a reasonable doubt of his guilt. Pollard v. The State, 53 Miss. 410; Cunningham v. The State, 56 Miss. 269 ; Hawthorne v. The State, 58 Miss. 778; Smith v. The State, Ib. 867; Ingram v. The State, ante, 142.

Reversed,.  