Chalmers, J.,
delivered the opinion of the court.
The appellant was convicted in the Circuit Court of Tippah County of the murder of Frederic Carpenter, and sentenced to confinement in the penitentiary for life. The evidence was circumstantial. The defence was rested on two grounds:
1. That the testimony was not of that conclusive character essential to warrant a conviction on circumstantial evidence ;
2. An alibi. With regard to the second.ground of defence, the court charged the jury, that, in order to support an alibi, it was essential that the testimony should so cover the whole time involved in the transaction as to render it impossible for the defendant to have committed the offence charged against him ; and if the testimony adduced in support of it failed to meet this requirement of the law, so as to render it impossible for him to have committed the offence, the jury should find him guilty, if otherwise satisfied of his guilt.
By a subsequent instruction, the same doctrine was reiterated, with the additional declaration, that “ it is not enough that such evidence (relative to the alibi) renders the guilt of the accused improbable, if, looking to all the evidence in the case, the jury are satisfied beyond reasonable doubt that he is guilty as charged.” Of this latter charge it is to be remarked that it seems to contain a contradiction in terms which it is impossible to reconcile. The mind can rest upon no satisfactory conclusion, when informed that it is not enough that the guilt of the accused is rendered improbable by any particular testimony, if from all the testimony in the case the guilt is established beyond a reasonable doubt. If the particular testimony renders the guilt improbable upon the whole case, then it is a mental and moral impossibility that all. the testimony should place the guilt beyond a reasonable doubt. It is probable that the confusion arises from the omission of the word “ other ” before the word “ evidence ” in the last clause of the instruction, and that the intention was to inform the jury that although the testimony in support of the alibi rendered the guilt of the prisoner improbable, he was still to be convicted, if by the other testi[422]*422mony (leaving the alibi out of view) they were satisfied of his guilt beyond a reasonable doubt. This would make the second instruction on this subject conform to the first, in enunciating the doctrine, that, wherever an alibi is set up, it devolves upon the party relying upon it to establish its absolute truth, and that it is not sufficient that the jury may deem that the probabilities are in favor of its existence. The first of the two instructions seems, indeed, to go beyond this, and to inform the jury that the proof adduced in support of the alibi must demonstrate the absolute physical impossibility of the prisoner’s guilt. There are, undoubtedly, many respectable authorities which teach a doctrine analogous to that thus enunciated. It is said by those holding this view, that by relying upon an alibi the accused admits the force and truth of the testimony adduced against him, and sets up a distinct affirmative defence, which in its nature requires the demonstration of the physical impossibility of guilt on his part in order to be effective, and that the burden of proving this affirmative defence necessarily rests upon him who pleads it.
If we admit that in criminal prosecutions there is such a thing as an affirmative defence, which shifts the burden of proof from the State on to the defendant (as to which there is great conflict of authority, and upon which it is unnecessary now to express an opinion), it seems to us that the instructions under review are nevertheless erroneous. It is undoubtedly true that an alibi is unproved, and is indeed' no alibi, unless the period covered by the proof supporting it embraces the time of the commission of the offence; but does it therefore follow that this physical impossibility of guilt must be absolutely demonstrated? Is it not sufficient, if the jury have been induced to think that the probabilities are in its favor ? Nay, more, is it not enough, if they have been led to entertain a reasonable doubt as to the presence or absence of the accused from the scene of crime ? When the State arraigns a citizen upon an indictment, it assumes the burden of proving his guilt to the satisfaction of the jury, to the exclusion of every reasonable doubt. When it has exhausted its testimony, or so much thereof as it deems necessary, it rests its case, and the prisoner enters [423]*423upon his defence. The burden resting upon him — if we admit that the burden of proof ever devolves upon him — falls far short of that imposed upon the State. He has only to raise in the minds of the jury a reasonable doubt of his guilt, springing out of all the evidence in the case ; and whether he contents himself with rebutting the case made by the State, with all the legal inferences and presumptions deducible therefrom, or adopts what is called an affirmative defence, by undertaking to show exculpatory facts wholly disconnected from the proof made by the State, he is alike entitled to his acquittal when he has succeeded in raising this doubt. If upon an indictment for murder the accused raises a reasonable doubt as to whether the killing was not done in self-defence, all will agree that he must be pronounced not guilty. Upon what principle, then, is it that he is required to do more where he undertakes to establish his innocence by showing that he was not present at the homicide ? Certainly, absence from the scene is an answer to the charge, as perfect and complete as self-defence, and we can see no reason why a doubt of guilt engendered by proof of one should be inferior to that created by proof of the other.
If the ideas erroneously entertained, as we think, on this subject were confined to the defence of alibi, and were not common also in reference to other defences, styled affirmative, we would suppose that they grew out of the fact that the period covered by the alibi must embrace the time of the commission of the offence, and that, inasmuch as a perfect alibi will preclude the possibility of guilt, authors and courts have thereby been misled into declaring that the defence must fail, unless guilt is absolutely negatived. This is confounding the definition of an alibi with the opinion which the jury must entertain relative to its establishment. An alibi, proceeding as it does upon the idea that the accused was elsewhere at the date of the act, does, of course, if thoroughly established, preclude the possibility of guilt; but it does not therefore follow that the jury must be absolutely convinced of its truth. It is enough if the proof adduced in support of it, viewed in connection with all the testimony in the case, creates such a probability of its own truth as to engender [424]*424a reasonable doubt of the truth of the charge upon which the defendant is arraigned; and this might be effected even though the jury did not feel positively assured either of the veracity of the witnesses or of the correspondence of time. If, looking to all the evidence, inculpatory and exculpatory, they entertain a reasonable doubt of the prisoner’s presence at and participation in the crime, they should acquit. They are, of course, the exclusive judges of the credibility of the witnesses, and this may be destroyed as well by circumstances as by impeachment.
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Chalmers, J.,
delivered the opinion of the court.
The appellant was convicted in the Circuit Court of Tippah County of the murder of Frederic Carpenter, and sentenced to confinement in the penitentiary for life. The evidence was circumstantial. The defence was rested on two grounds:
1. That the testimony was not of that conclusive character essential to warrant a conviction on circumstantial evidence ;
2. An alibi. With regard to the second.ground of defence, the court charged the jury, that, in order to support an alibi, it was essential that the testimony should so cover the whole time involved in the transaction as to render it impossible for the defendant to have committed the offence charged against him ; and if the testimony adduced in support of it failed to meet this requirement of the law, so as to render it impossible for him to have committed the offence, the jury should find him guilty, if otherwise satisfied of his guilt.
By a subsequent instruction, the same doctrine was reiterated, with the additional declaration, that “ it is not enough that such evidence (relative to the alibi) renders the guilt of the accused improbable, if, looking to all the evidence in the case, the jury are satisfied beyond reasonable doubt that he is guilty as charged.” Of this latter charge it is to be remarked that it seems to contain a contradiction in terms which it is impossible to reconcile. The mind can rest upon no satisfactory conclusion, when informed that it is not enough that the guilt of the accused is rendered improbable by any particular testimony, if from all the testimony in the case the guilt is established beyond a reasonable doubt. If the particular testimony renders the guilt improbable upon the whole case, then it is a mental and moral impossibility that all. the testimony should place the guilt beyond a reasonable doubt. It is probable that the confusion arises from the omission of the word “ other ” before the word “ evidence ” in the last clause of the instruction, and that the intention was to inform the jury that although the testimony in support of the alibi rendered the guilt of the prisoner improbable, he was still to be convicted, if by the other testi[422]*422mony (leaving the alibi out of view) they were satisfied of his guilt beyond a reasonable doubt. This would make the second instruction on this subject conform to the first, in enunciating the doctrine, that, wherever an alibi is set up, it devolves upon the party relying upon it to establish its absolute truth, and that it is not sufficient that the jury may deem that the probabilities are in favor of its existence. The first of the two instructions seems, indeed, to go beyond this, and to inform the jury that the proof adduced in support of the alibi must demonstrate the absolute physical impossibility of the prisoner’s guilt. There are, undoubtedly, many respectable authorities which teach a doctrine analogous to that thus enunciated. It is said by those holding this view, that by relying upon an alibi the accused admits the force and truth of the testimony adduced against him, and sets up a distinct affirmative defence, which in its nature requires the demonstration of the physical impossibility of guilt on his part in order to be effective, and that the burden of proving this affirmative defence necessarily rests upon him who pleads it.
If we admit that in criminal prosecutions there is such a thing as an affirmative defence, which shifts the burden of proof from the State on to the defendant (as to which there is great conflict of authority, and upon which it is unnecessary now to express an opinion), it seems to us that the instructions under review are nevertheless erroneous. It is undoubtedly true that an alibi is unproved, and is indeed' no alibi, unless the period covered by the proof supporting it embraces the time of the commission of the offence; but does it therefore follow that this physical impossibility of guilt must be absolutely demonstrated? Is it not sufficient, if the jury have been induced to think that the probabilities are in its favor ? Nay, more, is it not enough, if they have been led to entertain a reasonable doubt as to the presence or absence of the accused from the scene of crime ? When the State arraigns a citizen upon an indictment, it assumes the burden of proving his guilt to the satisfaction of the jury, to the exclusion of every reasonable doubt. When it has exhausted its testimony, or so much thereof as it deems necessary, it rests its case, and the prisoner enters [423]*423upon his defence. The burden resting upon him — if we admit that the burden of proof ever devolves upon him — falls far short of that imposed upon the State. He has only to raise in the minds of the jury a reasonable doubt of his guilt, springing out of all the evidence in the case ; and whether he contents himself with rebutting the case made by the State, with all the legal inferences and presumptions deducible therefrom, or adopts what is called an affirmative defence, by undertaking to show exculpatory facts wholly disconnected from the proof made by the State, he is alike entitled to his acquittal when he has succeeded in raising this doubt. If upon an indictment for murder the accused raises a reasonable doubt as to whether the killing was not done in self-defence, all will agree that he must be pronounced not guilty. Upon what principle, then, is it that he is required to do more where he undertakes to establish his innocence by showing that he was not present at the homicide ? Certainly, absence from the scene is an answer to the charge, as perfect and complete as self-defence, and we can see no reason why a doubt of guilt engendered by proof of one should be inferior to that created by proof of the other.
If the ideas erroneously entertained, as we think, on this subject were confined to the defence of alibi, and were not common also in reference to other defences, styled affirmative, we would suppose that they grew out of the fact that the period covered by the alibi must embrace the time of the commission of the offence, and that, inasmuch as a perfect alibi will preclude the possibility of guilt, authors and courts have thereby been misled into declaring that the defence must fail, unless guilt is absolutely negatived. This is confounding the definition of an alibi with the opinion which the jury must entertain relative to its establishment. An alibi, proceeding as it does upon the idea that the accused was elsewhere at the date of the act, does, of course, if thoroughly established, preclude the possibility of guilt; but it does not therefore follow that the jury must be absolutely convinced of its truth. It is enough if the proof adduced in support of it, viewed in connection with all the testimony in the case, creates such a probability of its own truth as to engender [424]*424a reasonable doubt of the truth of the charge upon which the defendant is arraigned; and this might be effected even though the jury did not feel positively assured either of the veracity of the witnesses or of the correspondence of time. If, looking to all the evidence, inculpatory and exculpatory, they entertain a reasonable doubt of the prisoner’s presence at and participation in the crime, they should acquit. They are, of course, the exclusive judges of the credibility of the witnesses, and this may be destroyed as well by circumstances as by impeachment.
There is but one question — there can be but one question — in a criminal prosecution: Has the guilt of the defendant been established beyond a reasonable doubt ? This is the experimentum crucis by which every juror must test the correctness of his verdict. If this question cannot be answered in the affirmative, the defendant is entitled to an acquittal, regardless of how the doubt has been engendered, provided only it arises out of all the evidence in the case, considered as a whole. Whether it springs •from the weakness of the testimony adduced by the State, or the strength of that produced by the defendant; whether the defence consists in negativing the ease made by the State, or in' confessing and avoiding it (if this latter expression is appropriate to any defence admissible under a plea of not guilty), such a doubt must ever command a verdict of not guilty.
The views here announced are by no means universally held. Many cases will be found to the contrary; but they are, we think, in accordance with the true spirit of the common law, and are the logical conclusions from its ancient and time-honored doctrines. They are supported by the following and many other authorities: Wharton on Homicide, § 652; Adams v. State, 42 Ind. 373; Binns v. State, 46 Ind. 311; Ogletree v. State, 28 Ala. 693; State v. Bartlett, 43 N. H. 224; Chase v. People, 40 Ill. 352; Hopps v. People, 31 Ill. 385; People v. Garbutt, 17 Mich. 9; People v. McCann, 16 N. Y. 58.
The jury should have been instructed for the State, that, even if they believed the witnesses supporting the alibi, they could not on that account acquit the accused, unless it had ■been proved that the period during which he was shown to [425]*425have been absent from .the scene of murder covered the time of its commission, or so nearly did it as to raise in their minds a reasonable doubt as to his having passed from one point to the other, and that in determining this question they must look to all the testimony in the case, giving to the witnesses on either side such credit as they thought them entitled to.
There were an unusually large number of instructions given, correctly announcing the legal rule on the subject of reasonable doubts; but we cannot think that they cured the vice of those relating to the alibi. They were general in their character, and may have been, and probably were, understood by the jury as having reference alone to doubts entertained in relation to the circumstantial evidence upon which the State relied for a conviction. It was as important to the accused that the jury should be correctly informed on one subject as on the other.
Nine instructions asked by the defendant were refused; but while a majority of them were perhaps correct, they were substantially covered- by the twenty-four given in his behalf. Where a circuit judge is called upon, amid the excitement of a nisi prius trial, to give such a mass of charges, we should be loath to reverse a case because of the improper giving or refusing of some of them, unless it was manifest that prejudice had been thereby sustained.
As the accused must undergo another trial, we forbear to comment on the facts.
Judgment reversed and venire de novo awarded.