Hall, Judge.
The trial court adequately charged the jury on the presumption of the defendant’s innocence and the State’s burden of proof to overcome this presumption by evidence convincing them of his guilt beyond all reasonable doubt, and the jury’s duty to acquit if a reasonable doubt of guilt remained in their minds. On the subject of alibi the court charged: “Alibi as a defense must be established by the defendant to the reasonable satisfaction of the jury and must be such as reasonably to exclude the possibility of the presence of the defendant at the scene of the offense at the time of its commission. When so established to the reasonable satisfaction of the jury, it is the duty of the jury to acquit. Evidence as to alibi should be considered by the jury in connection with all the other evidence in the case. And if on considering the evidence as a whole the jury should entertain a reasonable doubt as to the guilt of the accused, it is their duty to acquit. I charge you that alibi need not be proved beyond a reasonable doubt by the defendant, but just to the reasonable satisfaction of the jury. But any evidence whatever of alibi is to be considered with the rest of the testimony and if the evidence as a whole raises reasonable doubt of guilt, doubt must be given in favor of innocence.”
Comparable charges on the subject of alibi have been considered and approved by the Georgia appellate courts. Eugee v. State, 159 Ga. 604, 606 (126 SE 471); Laminack v. State, 187 [725]*725Ga. 648 (2 SE2d 99); Hale v. State, 110 Ga. App. 236 (138 SE2d 113). This defendant was convicted and sentenced on July 23, 1968. We must now consider the charge in light of a decision of the United States Supreme Court rendered December 16, 1968. Johnson v. Bennett, 393 U. S. 253 (89 SC 436, 21 LE2d 415). This decision is controlling if it means the due process clause of the Fourteenth Amendment of the United States Constitution is violated by the charge. “Under the Constitution of Georgia the supreme law is the Constitution of the United States. Code Ann. § 2-8001. The public policy of the State reflected by its statutes [or. case law] is subordinate to the Federal Constitution.” Connell v. Connell, 119 Ga. App. 485, 494 (167 SE2d 686). Furthermore, “In a case where questions arising under the Federal Constitution are properly invoked, this court is bound to follow the decisions of the Supreme Court of the United States as respects such questions.” Mason & Dixon Lines, Inc. v. Odom, 193 Ga. 471 (2) (18 SE2d 841). In Young v. State, 225 Ga. 255 (167 SE2d 586), the Supreme Court of Georgia disagreed with a contention that a like charge on alibi violated the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. However, the court in the Young case did not consider the decision of the United States Supreme Court in Johnson v. Bennett, supra, or the decisions in Stump v. Bennett, 398 F2d 111 (8th Cir. 1968), State v. Galloway, (Iowa), 167 NW2d 89, and the decision of the Eighth Circuit on July 17, 1969, in Johnson v. Bennett, 414 F2d 50, hereinafter discussed.
The first decision of the Eighth Circuit Court of Appeals in the Johnson case rejected the contention that due process was violated by a charge that the burden is upon a criminal defendant to prove the defense of alibi by a preponderance of the evidence. Johnson v. Bennett, 386 F2d 677 (8th Cir. 1967). After the Supreme Court granted certiorari to review the Johnson case, the Eighth Circuit in another case, reversing a conviction affirmed by the Iowa Supreme Court, condemned a charge that “the defendant has the burden of establishing this defense [alibi] by ... a preponderance or greater weight of the evidence bearing upon it.” The charge was held to vio[726]*726late fundamental rights incorporated in the due process clause of the Fourteenth Amendment to the United States Constitution. It was confusing and inconsistent with the defendant’s right to have the State prove his presence at the crime beyond a reasonable doubt. “The presumption of innocence is permanently shattered as to evidence relating to (1) the presence of the defendant, (2) the time, (3) the place of the crime itself.” As to these elements of the crime, the charge shifted the burden of persuasion to the defendant and required him to establish his innocence. The charge was not harmless though it was given in connection with other instructions that even if the greater weight of the evidence on alibi fails to establish that defense, if the evidence as a whole, including that on alibi, creates a reasonable doubt of the defendant’s guilt, the jury should return a verdict of not guilty. Stump v. Bennett, 398 F2d 111 (8th Cir. 1968). After the Stump decision the Supreme Court remanded the Johnson case to the Eighth Circuit for reconsideration in view of the Stump decision. This was an implicit approval by the Supreme Court of the Stump decision. Subsequent to the decision of the Supreme Court of the United States in the Johnson case, the Supreme Court of Iowa referred to the above rulings and said, “Pursuant to these pronouncements and mandates by the United States courts the alibi instruction can no longer be approved.” On July 17, 1969, the Eighth Circuit Court of Appeals followed the mandate of the Supreme Court by reversing its previous decision in the Johnson case and followed Stump v. Bennett, supra. Johnson v. Bennett, 414 F2d 50, supra.
The Eighth Circuit’s opinion in the Stump case noted that Iowa was “one of only two states which now require a defendant to assume the burden of persuasion by a preponderance of evidence in establishing an alibi . . . Georgia’s rule is similar •though not identical to Iowa’s.” Stump v. Bennett, supra, p. 114. Of the Georgia rule the Georgia Supreme Court has said: “The preponderance of the testimony might or might not show the facts of the alleged alibi to the reasonable satisfaction of the jury. Less than a preponderance might do so; more might not.” Bone v. State, 102 Ga. 387, 393 (30 SE 845).
[727]*727The Georgia courts have held that when the defendant presents evidence to show he could not have been present at the time and place of the alleged crime, the trial court is required to charge on the “defense” of alibi. Fletcher v. State, 85 Ga. 666 (11 SE 872); Moody v. State, 114 Ga. 449 (40 SE 242); Kitchens v. State, 209 Ga. 913, 914 (76 SE2d 618). However, the duty to instruct on alibi could be fulfilled by instructing that the evidence presented to prove alibi, considered alone or with all the other evidence, need only be sufficient to create a reasonable doubt of the defendant’s guilt. This is a true and simple statement of the law. It is consistent with Georgia Code § 38-122 and could be charged in connection with it.
Alibi is not truly an independent affirmative defense. It is simply evidence in support of a defendant’s plea of not guilty, and should be treated merely as “evidence tending to disprove one of the essential factors in the case of the prosecution, that is, presence of the defendant at the time and place of the alleged crime.” Stump v. Bennett, 398 F2d 111, 115, supra; 21 AmJur2d 206, § 136; Anno. 29 ALR 1139; 67 ALR 138, 141; 124 ALR 471, 474. However, the instructions usually given to the jury and approved by the Georgia appellate courts in the past have treated alibi as an affirmative defense and created an anomaly in the law. 11 Encyclopedia of Georgia Law (Evidence) 379, § 138; Green, Georgia Law of Evidence 75, § 21.
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Hall, Judge.
The trial court adequately charged the jury on the presumption of the defendant’s innocence and the State’s burden of proof to overcome this presumption by evidence convincing them of his guilt beyond all reasonable doubt, and the jury’s duty to acquit if a reasonable doubt of guilt remained in their minds. On the subject of alibi the court charged: “Alibi as a defense must be established by the defendant to the reasonable satisfaction of the jury and must be such as reasonably to exclude the possibility of the presence of the defendant at the scene of the offense at the time of its commission. When so established to the reasonable satisfaction of the jury, it is the duty of the jury to acquit. Evidence as to alibi should be considered by the jury in connection with all the other evidence in the case. And if on considering the evidence as a whole the jury should entertain a reasonable doubt as to the guilt of the accused, it is their duty to acquit. I charge you that alibi need not be proved beyond a reasonable doubt by the defendant, but just to the reasonable satisfaction of the jury. But any evidence whatever of alibi is to be considered with the rest of the testimony and if the evidence as a whole raises reasonable doubt of guilt, doubt must be given in favor of innocence.”
Comparable charges on the subject of alibi have been considered and approved by the Georgia appellate courts. Eugee v. State, 159 Ga. 604, 606 (126 SE 471); Laminack v. State, 187 [725]*725Ga. 648 (2 SE2d 99); Hale v. State, 110 Ga. App. 236 (138 SE2d 113). This defendant was convicted and sentenced on July 23, 1968. We must now consider the charge in light of a decision of the United States Supreme Court rendered December 16, 1968. Johnson v. Bennett, 393 U. S. 253 (89 SC 436, 21 LE2d 415). This decision is controlling if it means the due process clause of the Fourteenth Amendment of the United States Constitution is violated by the charge. “Under the Constitution of Georgia the supreme law is the Constitution of the United States. Code Ann. § 2-8001. The public policy of the State reflected by its statutes [or. case law] is subordinate to the Federal Constitution.” Connell v. Connell, 119 Ga. App. 485, 494 (167 SE2d 686). Furthermore, “In a case where questions arising under the Federal Constitution are properly invoked, this court is bound to follow the decisions of the Supreme Court of the United States as respects such questions.” Mason & Dixon Lines, Inc. v. Odom, 193 Ga. 471 (2) (18 SE2d 841). In Young v. State, 225 Ga. 255 (167 SE2d 586), the Supreme Court of Georgia disagreed with a contention that a like charge on alibi violated the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. However, the court in the Young case did not consider the decision of the United States Supreme Court in Johnson v. Bennett, supra, or the decisions in Stump v. Bennett, 398 F2d 111 (8th Cir. 1968), State v. Galloway, (Iowa), 167 NW2d 89, and the decision of the Eighth Circuit on July 17, 1969, in Johnson v. Bennett, 414 F2d 50, hereinafter discussed.
The first decision of the Eighth Circuit Court of Appeals in the Johnson case rejected the contention that due process was violated by a charge that the burden is upon a criminal defendant to prove the defense of alibi by a preponderance of the evidence. Johnson v. Bennett, 386 F2d 677 (8th Cir. 1967). After the Supreme Court granted certiorari to review the Johnson case, the Eighth Circuit in another case, reversing a conviction affirmed by the Iowa Supreme Court, condemned a charge that “the defendant has the burden of establishing this defense [alibi] by ... a preponderance or greater weight of the evidence bearing upon it.” The charge was held to vio[726]*726late fundamental rights incorporated in the due process clause of the Fourteenth Amendment to the United States Constitution. It was confusing and inconsistent with the defendant’s right to have the State prove his presence at the crime beyond a reasonable doubt. “The presumption of innocence is permanently shattered as to evidence relating to (1) the presence of the defendant, (2) the time, (3) the place of the crime itself.” As to these elements of the crime, the charge shifted the burden of persuasion to the defendant and required him to establish his innocence. The charge was not harmless though it was given in connection with other instructions that even if the greater weight of the evidence on alibi fails to establish that defense, if the evidence as a whole, including that on alibi, creates a reasonable doubt of the defendant’s guilt, the jury should return a verdict of not guilty. Stump v. Bennett, 398 F2d 111 (8th Cir. 1968). After the Stump decision the Supreme Court remanded the Johnson case to the Eighth Circuit for reconsideration in view of the Stump decision. This was an implicit approval by the Supreme Court of the Stump decision. Subsequent to the decision of the Supreme Court of the United States in the Johnson case, the Supreme Court of Iowa referred to the above rulings and said, “Pursuant to these pronouncements and mandates by the United States courts the alibi instruction can no longer be approved.” On July 17, 1969, the Eighth Circuit Court of Appeals followed the mandate of the Supreme Court by reversing its previous decision in the Johnson case and followed Stump v. Bennett, supra. Johnson v. Bennett, 414 F2d 50, supra.
The Eighth Circuit’s opinion in the Stump case noted that Iowa was “one of only two states which now require a defendant to assume the burden of persuasion by a preponderance of evidence in establishing an alibi . . . Georgia’s rule is similar •though not identical to Iowa’s.” Stump v. Bennett, supra, p. 114. Of the Georgia rule the Georgia Supreme Court has said: “The preponderance of the testimony might or might not show the facts of the alleged alibi to the reasonable satisfaction of the jury. Less than a preponderance might do so; more might not.” Bone v. State, 102 Ga. 387, 393 (30 SE 845).
[727]*727The Georgia courts have held that when the defendant presents evidence to show he could not have been present at the time and place of the alleged crime, the trial court is required to charge on the “defense” of alibi. Fletcher v. State, 85 Ga. 666 (11 SE 872); Moody v. State, 114 Ga. 449 (40 SE 242); Kitchens v. State, 209 Ga. 913, 914 (76 SE2d 618). However, the duty to instruct on alibi could be fulfilled by instructing that the evidence presented to prove alibi, considered alone or with all the other evidence, need only be sufficient to create a reasonable doubt of the defendant’s guilt. This is a true and simple statement of the law. It is consistent with Georgia Code § 38-122 and could be charged in connection with it.
Alibi is not truly an independent affirmative defense. It is simply evidence in support of a defendant’s plea of not guilty, and should be treated merely as “evidence tending to disprove one of the essential factors in the case of the prosecution, that is, presence of the defendant at the time and place of the alleged crime.” Stump v. Bennett, 398 F2d 111, 115, supra; 21 AmJur2d 206, § 136; Anno. 29 ALR 1139; 67 ALR 138, 141; 124 ALR 471, 474. However, the instructions usually given to the jury and approved by the Georgia appellate courts in the past have treated alibi as an affirmative defense and created an anomaly in the law. 11 Encyclopedia of Georgia Law (Evidence) 379, § 138; Green, Georgia Law of Evidence 75, § 21. Professor Agnor stated the problem succinctly in his Evidence chapter in the Encyclopedia of Georgia Law, supra: “The Georgia courts have treated several defenses as affirmative defenses that are not true affirmative defenses. One is the matter of alibi as a defense. Alibi is not a true affirmative defense. It is simply evidence rebutting the case for the prosecution. It is a denial of the charge against the defendant. A number of jurisdictions have properly considered alibi as not being an affirmative defense and give examples of a proper charge. However, Georgia holds that alibi is an affirmative defense and this causes trouble with the charge to be given to the jury. The jury is charged that the defendant must establish alibi by a preponderance of the evidence, but then must also be charged that the evidence as to alibi must be considered with all the other evi[728]*728dence in the case and that if they then have a reasonable doubt as to his guilt they must acquit. In other words, first he must prove by a preponderance of the evidence that he was not present at the scene of the offense at the time of its commission, but no, really all he must do is raise a reasonable doubt as to his presence. First it is an affirmative defense, then it is not an.affirmative defense.” Its absurdity was referred to over sixty years ago by one of if not the most learned of all the judges who ever sat upon the Georgia Bench- — -Arthur Gray Powell: “As to the law governing the defense of alibi, the decisions in this State recognize, and in a measure uphold, a plain, palpable incongruity. It is said that the burden of proving an alibi to the reasonable satisfaction of the jury rests upon the defendant; yet the State must show the defendant to be guilty beyond a reasonable doubt, and if his proof tending to establish an alibi raises such a doubt, he is to be acquitted; in other words the State must show, as a part of the case, and must prove beyond a reasonable doubt, the defendant’s presence; but the defendant must establish his absence to the reasonable satisfaction of the jury. If it be conceded that absence and presence are absolute opposites, and that proof to the reasonable satisfaction of the jury is of a different degree from proof beyond a reasonable doubt, the logical absurdity of the proposition just announced is apparent.” Smith v. State, 3 Ga. App. 803 (61 SE 737).
The charge enumerated as error by the defendant was error. It was not harmless even though it was given in connection with the other instructions stated at the beginning of this opinion. The trial court erred in overruling the defendant’s motion for new trial.
Judgment reversed.
Bell, C. J., Jordan, P. J., Eberhardt, Pannell, Deen, Quillian and Evans, JJ., concur. Whitman, J., dissents.