Wood, J.
Appellant was convicted of murder in the first degree upon an indictment charging that he “did unlawfully, wil-fully, feloniously, and of his malice aforethought, and after premeditation and deliberation, kill and murder one A. T. Carpenter,” etc. The record shows that the state introduced several witnesses, “whose testimony tended to show by facts and circumstances that the defendant was guilty as charged in the indictment of murder in the first degree.” On behalf of defendant several witnesses testified to facts tending to establish an alibi.
We are asked to reverse because the court gave the following-instructions: “(6) If you find from the evidence beyond a reasonable doubt that defendant in the perpetration of, or in the attempt to perpetrate, tire robbery of A. T. Carpenter shot and killed Carpenter, then defendant is guilty of murder in the first degree, and you will so find. (9) The defendant in this case does not set up justification, but he undertakes to show that at the time that Carpenter was killed he, the defendant, was not at the place where such killing occurred, but at another place, and that therefore he was not connected with or implicated in such crime. The burden of showing an alibi is on the defendant, but if on the whole case the testimony raises a reasonable doubt that the defendant was present when the crime was committed, he should be acquitted; but the jury should scrutinize the testimony of witnesses to see if some of them may or may not be mistaken as to dates and times when they saw the defendant, and it is proper for the jury to consider the lapse of time since the occurrence happened, and whether witnesses are likely or not likely after such lapse of time to be accurate as to the precise time or hour that they saw defendant on the night the shooting occurred. In other words, in arriving at your conclusion on this point, the jury should consider whether it may or may not be true that defendant was present at the time and place Carpenter was shot, and that some of the witnesses are honestly mistaken as to the exact time they saw defendant upon the evening and night of November 3, 1900.”
1. The indictment was good for murder in the first degree. It was not necessary for it to set forth the facts and circumstances constituting the crime. That was matter of proof. Any proof which showed the defendant to be guilty of murder in the first degree, as defined by our statute, was competent. It was not necessary to charge specifically in the indictment that the murder was committed in the attempt to pei’petrate robbery, in order to admit proof of that fact. State v. Johnson, 72 la. 393-400; Com. v. Flanagan, 7 Watts & S. 415; State v. Hopkirk, 84 Mo. 278; 10 Enc. Pl. & Pr. 150; People v. Giblin, 115 N. Y. 196, 4 L. R. A. 757.
The record shows affirmatively that the facts and circumstances tended "to prove the murder as charged in the indictment.” In the absence of any proof tending to show that the homicide, although committed in the 'attempt to perpetrate robbery, was unintentional, it must be held that it was as stated to be shown in the record. The court's charge, so far as the record shows, was hut based upon the proof.
2. Instruction 9 is a literal copy of an instruction approved by this court in Ware v. State, 59 Ark. 379. That case was well considered, and the conclusion we then reached was sound. Learned counsel for appellant, we think, misapprehend the purport of the instruction. It does not shift the burden upon the defendant to prove his innocence. The burden is still upon the. state to prove beyond a reasonable doubt upon the evidence in the whole case (which would include evidence of alibi) that the defendant was present when the crime was committed.
In Com. v. Choate, 105 Mass. 456, the court passed upon an instruction which told the jury “that where the defendant sought to establish the fact that he was at a particular place at any given time, and wished them to take it as an affirmative fact proved, the burden of proof was upon him, and if he failed in maintaining that burden, the jury could not consider it as a fact proved in the case; that the burden, however, was upon the government to show that the defendant was present at the time of the commission of the offence, and as bearing upon that question the jury were to consider all the evidence offered by the defendant tending to prove an alibi, and if upon all the evidence the jury entertained a reasonable doubt as to the presence of the defendant at the fire, they were to acquit.” The court said of this: “The substance of the whole ruling was that if the evidence of the defendant which tended to prove an alibi was such that, taken together with the other evidence, the jury were left in reasonable doubt as to whether the defendant was present at the alleged ñre, they should acquit him.” The instruction in the form given in the Massachusetts case is perhaps a preferable statement of the law. But the instruction under consideration, fairly construed, is of exactly the same purport. The burden to show the defendant’s presence and participation in the crime is still upon the state, when the evidence is considered as a whole, including that introduced by the defendant on the question of alibi. But, as to the particular defense of alibi set up under the general pica of not guilty, the defendant, if he relies upon it as an affirmative fact, must show that particular fact. The state could not be expected to prove that he was not present. That would be to devolve upon the state the duty of proving a negative; i. e. that defendant was not present, and not guilty. The state must prove its charge — the guilt of the accused — beyond a reasonable doubt, notwithstanding the testimony tending to prove an alibi, or the defendant must be acquitted; but it is the province of tbe defendant to introduce evidence tending to sliow an alibi wben relied on as an affirmative matter of defense, and as to this tbe burden rests upon bim.
3. The court also gave tbe following: “(13) Tbe law requires that tbe guilt of tbe defendant shall be established to your satisfaction beyond a reasonable doubt before you can convict him, but it does not require that each circumstance in tbe chain of evidence shall be established to your satisfaction beyond a reasonable doubt. It is sufficient if, on the whole case, you are satisfied beyond a reasonable doubt, although the individual circumstances may not themselves be so established.”
During the argument to the jury of J. C. Byers, of counsel for defendant, he said in substance: “This is a case depending on a chain of circumstantial evidence. No chain is stronger than its weakest link. If any link in this chain is weak or broken by the evidence of the defendant, then the entire chain is broken and destroyed, and you should acquit the defendant.” After this statement of counsel, and while he was addressing the jury, the court prepared, and, after counsel for defendant concluded his address, gave in writing, instruction marked “A,” as follows:
“A. We often speak of a chain of circumstantial evidence. This is an expression used in these instructions, and found in the law books. It is a metaphor used to convey an idea. It is not strictly accurate. It is more accurate to speak of the series of facts given in evidence in a circumstantial evidence ease not as links in a chain, but as threads or strands making a rope or cord of evidence.
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Wood, J.
Appellant was convicted of murder in the first degree upon an indictment charging that he “did unlawfully, wil-fully, feloniously, and of his malice aforethought, and after premeditation and deliberation, kill and murder one A. T. Carpenter,” etc. The record shows that the state introduced several witnesses, “whose testimony tended to show by facts and circumstances that the defendant was guilty as charged in the indictment of murder in the first degree.” On behalf of defendant several witnesses testified to facts tending to establish an alibi.
We are asked to reverse because the court gave the following-instructions: “(6) If you find from the evidence beyond a reasonable doubt that defendant in the perpetration of, or in the attempt to perpetrate, tire robbery of A. T. Carpenter shot and killed Carpenter, then defendant is guilty of murder in the first degree, and you will so find. (9) The defendant in this case does not set up justification, but he undertakes to show that at the time that Carpenter was killed he, the defendant, was not at the place where such killing occurred, but at another place, and that therefore he was not connected with or implicated in such crime. The burden of showing an alibi is on the defendant, but if on the whole case the testimony raises a reasonable doubt that the defendant was present when the crime was committed, he should be acquitted; but the jury should scrutinize the testimony of witnesses to see if some of them may or may not be mistaken as to dates and times when they saw the defendant, and it is proper for the jury to consider the lapse of time since the occurrence happened, and whether witnesses are likely or not likely after such lapse of time to be accurate as to the precise time or hour that they saw defendant on the night the shooting occurred. In other words, in arriving at your conclusion on this point, the jury should consider whether it may or may not be true that defendant was present at the time and place Carpenter was shot, and that some of the witnesses are honestly mistaken as to the exact time they saw defendant upon the evening and night of November 3, 1900.”
1. The indictment was good for murder in the first degree. It was not necessary for it to set forth the facts and circumstances constituting the crime. That was matter of proof. Any proof which showed the defendant to be guilty of murder in the first degree, as defined by our statute, was competent. It was not necessary to charge specifically in the indictment that the murder was committed in the attempt to pei’petrate robbery, in order to admit proof of that fact. State v. Johnson, 72 la. 393-400; Com. v. Flanagan, 7 Watts & S. 415; State v. Hopkirk, 84 Mo. 278; 10 Enc. Pl. & Pr. 150; People v. Giblin, 115 N. Y. 196, 4 L. R. A. 757.
The record shows affirmatively that the facts and circumstances tended "to prove the murder as charged in the indictment.” In the absence of any proof tending to show that the homicide, although committed in the 'attempt to perpetrate robbery, was unintentional, it must be held that it was as stated to be shown in the record. The court's charge, so far as the record shows, was hut based upon the proof.
2. Instruction 9 is a literal copy of an instruction approved by this court in Ware v. State, 59 Ark. 379. That case was well considered, and the conclusion we then reached was sound. Learned counsel for appellant, we think, misapprehend the purport of the instruction. It does not shift the burden upon the defendant to prove his innocence. The burden is still upon the. state to prove beyond a reasonable doubt upon the evidence in the whole case (which would include evidence of alibi) that the defendant was present when the crime was committed.
In Com. v. Choate, 105 Mass. 456, the court passed upon an instruction which told the jury “that where the defendant sought to establish the fact that he was at a particular place at any given time, and wished them to take it as an affirmative fact proved, the burden of proof was upon him, and if he failed in maintaining that burden, the jury could not consider it as a fact proved in the case; that the burden, however, was upon the government to show that the defendant was present at the time of the commission of the offence, and as bearing upon that question the jury were to consider all the evidence offered by the defendant tending to prove an alibi, and if upon all the evidence the jury entertained a reasonable doubt as to the presence of the defendant at the fire, they were to acquit.” The court said of this: “The substance of the whole ruling was that if the evidence of the defendant which tended to prove an alibi was such that, taken together with the other evidence, the jury were left in reasonable doubt as to whether the defendant was present at the alleged ñre, they should acquit him.” The instruction in the form given in the Massachusetts case is perhaps a preferable statement of the law. But the instruction under consideration, fairly construed, is of exactly the same purport. The burden to show the defendant’s presence and participation in the crime is still upon the state, when the evidence is considered as a whole, including that introduced by the defendant on the question of alibi. But, as to the particular defense of alibi set up under the general pica of not guilty, the defendant, if he relies upon it as an affirmative fact, must show that particular fact. The state could not be expected to prove that he was not present. That would be to devolve upon the state the duty of proving a negative; i. e. that defendant was not present, and not guilty. The state must prove its charge — the guilt of the accused — beyond a reasonable doubt, notwithstanding the testimony tending to prove an alibi, or the defendant must be acquitted; but it is the province of tbe defendant to introduce evidence tending to sliow an alibi wben relied on as an affirmative matter of defense, and as to this tbe burden rests upon bim.
3. The court also gave tbe following: “(13) Tbe law requires that tbe guilt of tbe defendant shall be established to your satisfaction beyond a reasonable doubt before you can convict him, but it does not require that each circumstance in tbe chain of evidence shall be established to your satisfaction beyond a reasonable doubt. It is sufficient if, on the whole case, you are satisfied beyond a reasonable doubt, although the individual circumstances may not themselves be so established.”
During the argument to the jury of J. C. Byers, of counsel for defendant, he said in substance: “This is a case depending on a chain of circumstantial evidence. No chain is stronger than its weakest link. If any link in this chain is weak or broken by the evidence of the defendant, then the entire chain is broken and destroyed, and you should acquit the defendant.” After this statement of counsel, and while he was addressing the jury, the court prepared, and, after counsel for defendant concluded his address, gave in writing, instruction marked “A,” as follows:
“A. We often speak of a chain of circumstantial evidence. This is an expression used in these instructions, and found in the law books. It is a metaphor used to convey an idea. It is not strictly accurate. It is more accurate to speak of the series of facts given in evidence in a circumstantial evidence ease not as links in a chain, but as threads or strands making a rope or cord of evidence. The individual fibers may be of very small strength, in themselves unable to sustain any weight of consquenee, but when sufficiently numerous, and properly intertwined with others of like bind, may make the strongest cordage — cordage sufficient to hold the largest ship in a great storm. Gentlemen, it is for you in this case to declare whether or not the fibers of evidence are sufficiently numerous and properly arranged with their fellows to unescapingly bind together the defendant and his guilt of the' charge against him.”
The court offered to allow defendant’s counsel further time to address the jury on the instruction.
The court having used a metaphor to characterize the evidence, counsel for appellant seized upon this in argument, and by literal adherence to it was perverting the well-established rule that each circumstance in cases of circumstantial evidence does not have to be proved beyond a reasonable doubt, it being sufficient if, upon the whole case, the evidence convinces the jury beyond a reasonable doubt. Thus the argument of counsel was inconsistent with the principle which the court had correctly announced in the same instruction in which the inaccurate metaphor was used. In order, therefore, that the jury might not get an erroneous impression of the force and effect to be given circumstantial evidence, both from the prior inaccurate statement of the court and the argument of counsel, it was exceedingly appropriate that the court explain and correct its charge. In doing so the court thought it proper to use another metaphor, and this time one approved by text writers as an apt illustration and designation of circumstantial evidence. Wills, Cir. Bv. 279. It was certainly not incumbent upon the presiding judge to use metaphorical language to set forth the simple and well-settled rules of the law, and we would not 'be understood as approving as a precedent the instruction given by the court. The writer is of the opinion that the plain principles of the law are best declared to the ordinary jury in our terse English, unadorned by figures of speech or flowers of rhetoric. This, however, is a matter of taste. The mere form apd verbiage of an instruction cannot be considered as prejudicial and reversible error, so long as no erroneous principle of law is announced, and so long as the instruction is free from an expression of opinion on the facts, and is not calculated to confuse or mislead the jury.
The latter part of the ninth, supra, and instruction “B” given after the close of the argument, were cautionary. Such instructions are within the sound discretion of the presiding judge. Great care should be exercised as to the time, manner, and form of giving such instructions, lest they make the impression on the jury that the court has convictions on one side or the other of the controversy, and subject the judge to the suspicion of holding an uneven balance in the cause. Circumstances and occasions do frequently arise, however, when cautionary instructions, drawn in proper form, given at the proper time, and in the proper manner, are important and .necessary. The discretion of the trial judge will not be limited in these matters, unless it has been grossly abused to the prejudice of the accused. We cannot say that the court abused its discretion in this case.
Finding no reversible error, the judgment is affirmed.