The opinion of .the court was delivered by
Taft, J.
1. This court held that it was not legal error to appoint as prosecutor in a criminal proceeding an attorney who was,-at the .time, acting as counsel in a civil suit against the respondent’, to recover damages for the acts upon which the criminal action was based. Such appointment was within the discretion of the court below, and its exercise will not be revised by us. State v. Miller, Sup. Ct. Wash. Co., May term, 1887.
2. It is contended that it was error to allow peremptory challenges by the State, for that the statute permitting them is in conflict with the Bill of Rights, s. 10, which guarantees to a respondent a trial by jury, which has been held, in State v. Peterson, 41 Vt. 518, to be a common law jury, and that at common law no peremptory challenges were allowed in behalf of the government. By the ancient common law the crown could challenge without limit, but the “ Ordinance for inquest,” 33 Ewd. 1 Stat. 4, narrowed the; challenges down to those for cause shown. There was,” said Lord Campbell, C. J., “ no intention of taking away all power of peremptory challenge from the crown, while that power, to the number of thirty-five, was left to the prisoner.” Mansell v. Rey., 8 El. & Bl. 54, 71. The effect of the statute was early mitigated by a rule of practice, not to compel the crown to show cause against the juror at the time of the challenge. The juror was directed to stand aside, and the defendant having completed his challenging, if a panel could be procured from the unobjectionable jurors remaining, these were selected, and it was only in case of a deficiency that the crown was called upon to show cause in respect to those members who had been directed to stand aside. As the court could direct the [179]*179return of any number of jurors for tire trial of a particular case, •the crown practically was never deprived of the right in -substance. This was the settled practice as early as 1699, Cowper’s case, 13 How. St. Tr. 1108. While the crown could not insist •upon the rule, as a legal right, audit was often questioned, it was said, by Buller, J., in O’Corgly’s case, 26 How. St. Tr. 1240, that ,it was “ as firmly and as fully settled on this point as any one question that can arise on the law of England,” and since -this ’.time the practice has never been successfully questioned in England. Thus, at the time of the adoption of our constitution, the crown, in summoning, ad libitum, and standing aside, jqrors, possessed all tire advantages obtained by peremptory challenge. But were this not so, what the ’Constitution guarantees is a trial by a common law jury, i. e., one of twelve impartial men, and it is within the legitimate scope of legislation to regulate the manner of selecting them and conducting the trial; nor, are we aware, has it ever been held otherwise. Walter v. People, 32 N. Y. 147.
3. At the request of the respondent, the court ordered “ the •witnesses examined separately and apart from each other.” The respondent called as a witness one Oarrick to prove an alibi. In rebuttal of his testimony, the State was permitted to use Mr. -Stafford, an attorney of the court, as a witness ; he had been present during the trial, and' testified upon a matter to which no other witness was called. Wo think the case should fall within the rule stated by Royce, Ch. J., in State v. Hopkins, 50 Vt. 316, and reaffirmed in State v. Lockwood, 58 Vt. 378. It could not have been the intent of the rule to exclude from the courtroom an attorney whose duty to his clients might require his presence in the room at almost any time during the session, in the transaction of business with the clerk, and.the other attorneys. ' The spirit of the rule could not be violated where the witness is the only one testifying upon the subject to which he is -called. Such was the fact in this case, and the respondent could mot have been injured by Stafford’s presence in the court-room -during the trial. In Georgia it'has been held that if a witness [180]*180remains in the court-room, under the rule, he is not thereby rendered incompetent, but may be proceeded against for contempt. Lassiter v. State, 67 Georgia 739. The following cases sustain the ruling below: Parker v. State, 67 Md. 329; Haskins v. Com., (Ky.) I. S. W. Rep. 730; Leache v. State, (Tex.) 3 S. W. Rep. 539; Rummel v. State, (Tex.) ibid 763.
4. The respondent insists that the remarks made by Mr. Ide,. in his opening statement to the jury, were improper. Objection was made and exception taken after he had closed his remarks. The objection was made too late ; it should have been made at the time of the statement, and the ruling of the court taken. The question, in this respect, is analagous to that of the introduction of illegal evidence without objection. The party against' whom it is given cannot afterwards raise the question. This has been held to be the rule during the argument of the causer much more should it obtain during an opening statement, when the jury are told by counsel, as they were in this case, that what he stated was not evidence. Com. v. Worcester, 14 Mass. 58; Willingham v. State, 21 Fla. 761.
5. Exception was taken to a part of the closing argument made by Mr. Ide for the prosecution. No objection was made-to it at the time of its' delivery, and we think, judging from fhe length and nature of the statements claimed to have been illegal,, and the well-known vigilant character[of the respondent’s counsel, that none was intended. Where counsel sit still during an argument which they claim is illegal and make no objection thereto,, an objection afterwards is too late. The exception is waived by their silence. This court sits in revision of errors made in the ruling, and the refusal to rule, of the court below. Upon this, question the court made no ruling, ¡did not refuse to make, one, and therefore there is nothing for usjto revise.
6. The respondent excepted to an offer to prove a certain fact, evidence of which was excluded. There is nothing in the-case to show that the offer was made in bad faith, and in the-absence of such showing we cannot hold that it was error to offer to prove such fact. The ruling was in favor of the. respondent, and he ought not to complain of it.
[181]*1817, 22. One witness was permitted to testify that the horse ■on the morning of the 27th of January appeared tired; another that, in his opinion, the track on the wall was made by. an over•shoe, and another that in his opinion the tracks in the snow were -sleigh tracks. The point taken is that the witnesses testified to their opinions and not facts from which the jury could form ■opinions of their own. A witness is allowed to state appearances in any case where they are in their nature incapable of «exact and minute description, e. g., the health or sanity of a person ; the appearance of a person when charged with a crime and “where the facts are of such a character as to be incapable of being presented with their proper force to any one but the observer himself, so as to enable the triers to draw a correct Or intelligent conclusion from them without the- aid of the judgment or opinion of the witness who had the benefit of personal ■observation ; he is allowed to a certain extent, to add his conclusion, judgment or opinion.” Bates v. Sharon, 45 Vt. 474. Under this rule the evidence was properly admitted. See Crane v. Northfield, 33 Vt. 124, and see Stowe v. Bishop, 58 Vt. 500; Knight v. Smyth, 57 Vt. 529.
8. The buildings were burned on the 26th of January, 1886, and the evidence tended to connect the respondent with the burning. The State were permitted to show that an attempt was made to burn them four weeks prior to that time, but the respondent insists that there was no evidence tending to connect him with it. It had a tendency to show that he took a horse and left St. Johnsbury ; that he went to Walden and returned? to the same place that he went to, at the time of the fire, but by a different route; this, with that tending to show a motive upon his part to commit the crime, had a.tendency to connect him with the attempt, and- if believed would be pertinent upon the question of whether he committed in January the crime which he attempted to commit the preceding month. Evidence of previous unsuccessful attempts to 'commit the same crime for which a respondent is on trial, is admissible. Com. v. Jackson, 152 Mass. 16. Evidence of previous threats to burn Foster’s [182]*182buildings would have been admissible, we think evidence of an attempt to cany such threats into execution, equally so. It is too clear to require discussion. The cases cited on this point, are mostly those of other and distinct crimes, such as State v. Hopkins, 50 Vt. 332; Brock v. State, 26 Ala. 104; People v. Sharp, 107 N. Y. 427, and others; or to show previous attempts-to commit the same crime without evidence to connect the, respondent with th'ém, as in State v. Freeman, 4 Jones (N. C.) 105. We should not be inclined to follow Baker v. People, 105 Ill. 452, where it was held that upon a trial for an attempt to commit an abortion, a prior attempt to commit it upon the-same person during the same pregnancy could not be shown.
9. It is insisted that the court erred in admitting evidence of the sleigh tracks, and experiments'with the sleigh, for the reason that there was no evidence to connect the respondent with, the tracks. The evidence tended to connect him with the fire,, and tended to show that the one who set the fire was with the: sleigh which made the tracks on the Goodenough road. To make-such evidence admissible it was not necessary to show that the-•respondent was actually seen with the sleigh upon the road. It' was enough to give evidence tending to show he was there witb it, and there was ample evidence in the case for that purpose.
10, 15, 16, 17. The prosecution claimed, and the evidence-tended to prove, that very intimate relations had existed between the respondent and Miss Olivia Amsden; that he desired to possess her in marriage; that these relations had been broken off, and she had refused to marry him, through influence of her fos-, ter parents, the Fosters ; that he was aware of these facts and in revenge committed the crime to injure them, because they had) interfered between him and her, either to take revenge upon them for such interference, or to wound her by injuring those-•to whom she was much attached, and who stood to her in loco* parentis. These were legitimate claims upon the question of the respondent’s guilt. The motive actuating a person in the commission of a crime is always pertinent; “ when crime has-been proved and circumstances point to the accused as the per[183]*183petrator, facts tending to show a motive, though remote, are admissible.” Summerville v. State, 6 Tex. app. 433. This is not controverted by defendant’s counsel, but it was the character of the evidence admitted to show the motive, which they criticised. We think the evidence admitted was legitimate, as tending to show facts from which the motive might be found by the jury.
a. The testimony of Foster as to the relations existing between Miss Amsden, and himself and wife was certainly per-' tinent, and the objection that the details of the relations were given, is not borne out by the record, for he was directed to state' what they were “ without going into the details ” and a' careful scanning of the exceptions pp. 8 and 9 fails to disclose an instance of his having done so. The testimony of Olivia that she had informed Ward of what the Fosters had said to her about him, and her being with him, was material to show knowledge on his part of their objection to . her relations with him. We think that whatever the Fosters said to her about Ward, which she communicated to him, was legitimate upon the' question of motive. The objection was general and the testimony being proper for one purpose there was no error in admitting it, it not appearing that it was used for any other purpose. What the Fosters said, it being communicated to Ward, in reference to Olivia’s- relations with him, was evidence upon one of" the material issues of the trial, and the case therefore, unlike Campbell v. State, 8 Tex. Ap. 84, cited by respondent where it was held error for a witness to testify that he told the defendant what his neighbors thought about a matter in controversy. What his neighbors thought was wholly irrelevant, as any instance of hearsay upon an immaterial matter would be.
b. The letter whiclr the testimony tended to show was written by Ward to Olivia’s sister, was strong evidence to show the relations theretofore existing between Ward and Olivia, and Ward’s knowledge or belief that the Fosters influenced her against him.
[184]*184c. The evidence of Olivia in regard to her conversation with Ward at the railroad station was admitted upon the question of Ward’s connection with the team. It tended to show an admission by him that he had the team both nights and so far as the case shows was used for that purpose only, and was in every respect legitimate.
d. The letters and postal cards had a tendency to show the past intimate relations of Olivia with the respondent, the termination of them against his will, and threats against Olivia, and were material upon question of motive.
11. In the early part of the trial some inquiries indicated that a claim might be made that Foster burned the buildings for the purpose of procuring the insurance money; in view of this fact it was permissible to- show what his conduct was at the fire. The fact that-he might feign conduct for the purpose of deceiving the bystanders would not determine the question of its competency. If he had fired the buildings the less likely he would be to burn himself in fighting the fire, and his conduct and acts at the fire might be very significant, in the eyes of the jury, upon that question. -
12. In view of the same claim it was proper to show the value of the buildings destroyed, but the value of the land of Foster was a collateral fact and therefore immaterial. In the cases cited to sustain this point, Wood v. McGuire, 17 Geo. 318, and Hyland v. Miller, 99 Ind. 309, the error consisted in depriving the excepting parties of the cross-examination of witnesses to material facts.
13. The witness Osgood testified that he heard a team pass Wilson’s house on the night of the 29th December; he was at Wilson’s house several nights both before and after the 29th, and the evidence tended to show that the team passed the night one Ryan was his-co-watcher. We think it was proper in testing his accuracy as a witness to ask him whether that was the only night he heard a team pass. The fact that he heard a team pass but one night, and that its passage was spoken of by him and Ryan- at the time might in connection with the other circum[185]*185¡stances, enable the jurors to. determine whether it was the night of the 29th or of some other day, that the team passed.
14. The question asked Streeter was not objected to until the answer had been given. There is nothing in the record to show that the question was answered before an objection could have been interposed, and we should not presume it, upon suggestion of counsel, Whether the question was improper we are not called upon to decide.
18. The testimony of the State tended to show that the person who set the fire took a team from the stable in St. Johns-bury, drove to the Noyesville road in Walden, then on the ELazen and* Goodenough roads to a point on the latter, where he left the team, went to the Foster buildings, fired them, wont back to the sleigh, turned it about, and returned to St. Johnsbury, by the same route over which he traveled in going from it; that in going to the place where the team was left in the road, in passing-from one road to the other a sharp angle was turned in each instance., ■Under exception the State was permitted to show that the horse, driven over the same route within four days, after the fire, left to itself and without guidance, instead of passing the two roads, at the point of junction, voluntarily made the turns- conforming to the route leading to the tracks and place of turning on the Good■enough road. Was the admission of this testimony error, or, in-other words, was this testimony evidence in the strict sense of the term ? “ The word evidence is applied to that which renders evident” and is defined to be any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact. Best on Evidence, s. 11. “ Does the fact .that when the horse was driven into the vicinity of Foster’s on Saturday, he voluntarily left the road upon which he was traveling and turned into the ELazen and Goodenough roads, have a tendency to produce in the mind a persuasion that he had been there the prior Wednesday ? If so it was evidence of the fact. The testimony tended to show that the horse had the habit of turning into premises and roads where he had before been driven, [186]*186and every one familiar with horses is aware of their constant-habit and custom in that respect; so much so that they can often be trusted to go without drivers in such places. We think the testimony had a tendency to create in the mind a persuasion, that the horse had been there before; to render that fact evident. The question is not how strong a persuasion, but had it a tendency to create any? We think the invariable answer would be-yes, and the testimony was properly admitted.
19. The witness Clutier testified that the respondent had the-team the night of the attempt to burn Foster’s buildings, and what was said by him about it when he returned it; and that he testified before the justice upon the same matter. It was material to show what he testified to before the justice in connection-with admissions which it was claimed the respondent made. The court then permitted counsel for the State to ask if he testified before the justice substantially as he had upon trial. In this there was no error, although the respondent would- have had the right to have the details of his former testimony given, if he requested it. If leading the court had a right to permit it.
20. Testimony for the respondent tended to show that at nine or half past nine o’clock, the night of the fire, he was at Little-ton, N. H. Lynch testified that he saw a horse in respondent’» barn at about six o’clock one evening, and Lynch’s wife testified she saw the respondent at his bairn harnessing a horse at about nine o’clock one evening. And that at a later hour that evening the horse was gone. Testimony tending to show that the fact that the horse was there, at respondent’s barn, and was afterwards taken out, was spoken of between Lynch and his wife,-, the evening that each testified they saw the horse there, was objected to and admitted under exception. The fact that they had conversation about the horse would tend to show that they were testifying about the same evening, and for that purpose was admissible. For that purpose the details of a conversation are sometimes held admissible. Earle v. Earle, 11 Allen 1; Hill v. North, 31 Vt. 601. Testimony of a like character was held inadmissible in Whitney v. Houghton, 125 Mass. 151, but it was-[187]*187upon the ground that declarations by a party in his own favor could not be shown. If the testimony in this case was inadmissible, whether the court erred in charging it out of the case, we-do not pass upon.
21,' 25, 26. The testimony of Montgomery, Smith and Sulloway, mentioned in these points, was clearly admissible upon the question of identifying the sleigh.
23. It was not error to permit the witness Drouin to exhibit-an overshoe. He had testified that he sold, the respondent one the year before, of the same size and width of the one shown ; there was testimony in the ease tending to show the length and, width of the track which, it was claimed, was made by the respondent, near Foster's house, the night of the fire. In connection with this testimony it was proper to exhibit the overshoe. It would enable the jurors to judge whether the tracks described could have been made by the respondent.
24. The respondent further insists that there was error in. admitting as evidence the sleigh, lard pail, candles, beets and the-newspaper, upon the ground that there was no evidence tending to connect the respondent with the same. We have held, under-point eight, that the evidence tended to connect him with the-attempt to burn the buildings in December, and it tended in like-degree to connect him with the articles used upon that occasion,, and with the sleigh and newspaper ; these articles having been-used in connection with the commission of the crime and the prior attempt to commit it, or by the perpetrator of it, were properly placed before the jury for their inspection in connection with the other testimony.
27. Sulloway testified that he did not know that Ward had used-a hitching weight, but his impression was that he had seen him use one. His testimony indicated that the fact was impressed with some strength upon his mind, not amounting, however, to-positive assurance. Witnesses often say, “ That is my impression,” “ I think so,” “ I’ll not positively say so, but that is my impression.” We think it competent testimony; the fainter the impression the less weight it should have. Clark v. Bigelow, 16 Me. 246; Humphries v. Parker, 53 Me. 502.
[188]*18828. The testimony of Montgomery in relation to the time he talked with several of the witnesses was properly admitted, for the purpose of fixing the time to which they testified.' It was -admitted for that purpose only.
29. To discredit Foster, May testified to facts tending to show that Foster on the trial testified differently than he did on the hearing before the justice. May stated a part of Foster’s testimony; the court properly admitted evidence of all of it. To impeach a witness by showing a part of what he said 'would .be unjust; all he said should be shown ; then the jury can judge whether his statements are inconsistent with his testimony. It is argued that its admission rendered the truth of Foster’s other testimony more probable in the minds of the jury. This would naturally be the effect of removing the impeachment of Foster, if any, and for that purpose was legitimate.
30. Exception was taken to the statements of the court in its ■charge, that there was no claim that the fire was an innocent one; that it was the wicked and malicious act of somebody, that it was maliciously set. The exceptions show that it was not •claimed on trial that the fire was an innocent one; the case was fried upon the opposite theory; the statements of the court were true. Was it error to so state % It was the duty of the court to •charge the jury upon every phase of the case, without request; to present the case to them as plainly as possible, to eliminate .all controverted -matters and distinctly point out the precise issues. Facts about which there is no dispute and concerning which no issue is made may properly be called to the attention ■of the jury in the discretion of the presiding judge. State v. Stenlason, 78 Me. 495; State v. Day, 79 Me. 120. To enable the jurors to act intelligently the court could adopt no wiser •course than to explain to them the respective claims of the parties. The only danger from this that could possibly have happened to the respondent was for the jury to get the impression that it was not necessary to find the body of the crime proven. We think they could not have done that from the remarks of the judge; the language used negates such an idea; the [189]*189judge said that everything in the case pointed with great force to the fact, not that it was an accidental fire, but that somebody purposely, maliciously, set it. We think the court did not assume and was not understood to assume that any disputed fact was proven. It would be casting too great a slur upon the intel-. ligence of the jurors to think they received the impression from the words used by the court that they could convict, without finding the fire purposely and maliciously set. To suppose they did imputes to them much less than ordinary intelligence. The question was not taken from them in the least. The court made the remark simply as a reason why it did not give them a full and technical definition of the crime. It did do so substantially, when it called the act a wicked, malicious burning, intentionally caused. This holding is not in conflict with Phillips v. State, 29 Ga. 105, cited by the respondent upon this point, where a charge that if it did not appear that the fire was caused by some accidental or providential cause, the law implied a malicious burning, was held erroneous. The law makes no such implication, the jurors in this ease were not so told, but simply that the facts pointed to a malicious burning, and were then left at liberty to find one or not from the evidence.
31. The duty of the court required it to explain to the jury the law applicable to a case of circumstantial evidence. Exception was taken because the court said that many great jurists have pronounced it “ of a nature equally satisfactory with positive evidence and less liable to proceed from perjury.” Counsel admit that perhaps the judge had the right to tell the jury what he thought of it, but deny his right to cite the authority of great jurists. When we consider that the law is made up of the opinions of jurists, and that it was the duty of the court- to tell the jury what the law was, it cannot be held error that the presiding judge referred to such opinions and told the jury what they were. It is not contended that the opinions of the great jurists upon the question were unsound, but that the court had ■no legal right to tell the jury what they were. We think there . was great propriety in telling the jury so, in giving them to un[190]*190derstand that it was as proper to convict on circumstantial evidence as on positive evidence and in citing the opinions of the -learned sages of the law. There is no difference between stating a rule to the jury, and reading it to them from the text books, written by great jurists. The latter has always been the practice in this country, at least in most of the States. In the celebrated case of Commonwealth v. Webster, 5 Cushing 200, the learned Shaw, Ch. J., read the whole of several sections of Easts’Pleas of the Crown, relating to the law of homicide and read from a text book “ that in some cases perhaps strong circumstantial evidence was the most satisfactory of any.” In State v. McDonnell, 32 Vt. 491, Bennett, J., in the trial read •copious excerpts, from the text books, Hale’s and Easts’ Pleas of the Cr., Poster’s Or. Law; Wharton on Homicide and Russell on Or.; as well as from the reports, and while the practice of reading text books to the extent to which it was carried in that case was severely criticised by Redfield, Ch. J., it was in no wise intimated that it was legal error. Like instances might be cited ■ad libitum.
32. An exception was taken “ to the charge as to the conduct of the respondent and inference to be drawn by the jury therefrom ” in that the court gave no instruction as to what kind •of conduct was evidence of guilt. The evidence in relation to his conduct had been admitted during the trial and presumedly the jurors understood at the time the purpose for which it was •admitted, and this being so there is nothing in the case to show that the nature and character of the evidence as to the conduct of the respondent was not understood at the time of its admission by the jurors, and the court were not under.any duty to explain to them what they already presumedly knew. It will be noticed that the exception was to the charge as given, not to a failure to charge, which is the question mainly argued in the respondent’s brief. - The criticisms are, that the court gave no instructions, etc.: not a complaint of what the court said, which would be covered by the exception, but of what it" did not say which is not within it. Un^er this exception the counsel .criti[191]*191cise the course of the triai permitted by the court, claiming that the fact that the respondent* did not testify in his own behalf was considered against him. Ve do not understand from the •exceptions that the statute R. L. s. 1655, which provides that the refusal of a respondent to testify shall not be considered by the jury as evidence against him, was in the least degree violated by either court or counsel. It is evident from the whole case that ■the fact that the respondent did not produce testimony to show where he was on the two nights in question, told strongly against him, for it seems improbable, to say the least, that he •could have twice taken a team at St. Johnsbury, driven fifteen •or twenty miles and returned without being able to show by ■some witness his whereabouts. Had he gone to Littleton on the night of the fire, as hq claimed, is it probable that he could ¿have gone there and been in the village for a time without being able to call some person with whom' he came in contact to show he was there ?
If he failed to do so the inference was strong that such was not the fact; and as we understand the case it was this failure to show where he was at the critical moment, and not that he ■did not testify on the trial, that was commented upon by the counsel, and as we think properly. If the jury were satisfied that on the night of the fire and of the attempt to set it, the respondent was in some place other than the locus criminis and could have called witnesses to prove it, his failure to do so was a proper, matter of comment by counsel and consideration by the jury. The rule is well stated by Poland, Ch. J. in Seward v. Garlin, 33 Vt. 583, “ A failure to produce proof, when in the power of the party, is recognized even in criminal cases, as proper to be ■considered by the jury.” “ Under Va. Code 1887, chap. 290, s. 3897, prohibiting comments upon the prisoner’s failure to testify, it is not error for the prosecuting attorney to remark that the respondent has not accounted for his whereabouts at the time of the homicide.” Sutton v. Com., (Va.) 7 So. E. Rep. 323.
[192]*19233. Exception was taken to the charge on the subject of alibi. The jury were told that if the proof of it did not outweigh the proof that he was at the place when the crime was committed it was not sufficient. In this statement there was no error. Where-an alibi is proved it is an absolute bar to the prosecution, and constitutes the best possible defense. It is a direct attack upon the-case made by the State by alleging a fact wholly inconsistent with' it, for one person cannot be in two places at the same time. If a. respondent can show that he was at another place when the crime was committed, the conclusion is irresistible that he did not commit it. The respondent alleges it, not in his pleadings, as it can be shown under the general issue of not guilty, but in his proof, as a full substantive defense, and alleging it, he must prove it. It is a defense resting upon extraneous facts not arising out of the res gestae, and the onus of proving it rests upon the respondent who alleges it. The burden being upon him, some courts hold “that the evidence must exclude the possibility of the prisoner’s having been at the scene of the crime so as to prove the alibi beyond a reasonable doubtothers that it must preponderate or outweigh that of the State. The latter was the rule adopted in the court below, and, we think, correctly. But it must' be taken in connection with the rest of the charge. Had the above been all the charge upon the alibi evidence,, there would be just ground of complaint; for, while the evidence might not have been sufficient to establish an alibi; it was not, therefore, to be discarded, laid out of the case, not considered by the jury, which has been the error in many of the American cases, e. g., Walters v. State, 39 Ohio 215, where the jury were told unless the testimony established an alibi by a preponderance it was not to be considered. Such cases are clearly erroneous. The attitude of the case at bar was this, an alibi was alleged, and the jury were told that the evidence to prove it must outweigh the evidence to show the respondent at the place of the crime, and if so established they should acquit him. After this instruction it was the duty of the court to go further, and to tell the j ury that if the alibi was not so established, that evidence of it was not to [193]*193be excluded from the case, but that it should be considered with the other evidence, and if, upon the whole, including that in relation to the alibi, there was a reasonable doubt of the respondent’s guilt, he was entitled to an acquittal. Bid the court discharge that duty ? We think it would be difficult to do it in plainer terms than those used by the court when it said: “ But this proof of an alibi, even if not sufficient, as against the other evidence, to establish the fact of an alibi, does not change the rule I have before stated, that in order to warrant conviction, you must be satisfied upon all the evidence in the case beyond a reasonable doubt. How has all the evidence in the case, including the alibi evidence, giving it, in its bearings in all directions, due consideration and weight, left your minds ? A party relying on an alibi as a defense, must prove it. But the setting it up does not change the presumptions of innocence or the burden of proof on the prosecution, as the same has been-explained, that the respondent was at the plane of the crime and committed it, and therefore not at home at the time, of it.” We think the charge covered the whole question and stated the law correctly. As we construe the charge in State v. Cameron, 40 Vt. 455, it was like the one in this case and was sustained in. this court. The charge below was like the one in Com. v. Webster, supra, which has been often followed by the courts and cited with approval in text books. Instructions like those below were held not contradictory in State v. Maher, Iowa 37 N. W. Rep. 2, 5; Ackerson v. People (Ill.), 16 N. E. Rep. 847; State v. Kline, 54 Iowa 183; State v. Reitz, 83 N. C. 634; People v. Ansing, 64 Cal. 253; State v. Reed, 62 Iowa 40; State v. Henrick, ibid 414, and see State v. Johnson, (Mo.) 3 S. W. Rep. 868.
In many of the later cases upon this subject no instructions have been given in relation to the testimony offered to prove an alibi, considered separately and apart from the main question, and we think the courts are tending in that direction, and to hold [194]*194that the' defense of an alibi does not demand specific instructions from the court, and for one I am inclined to think it the better practice, although it is not erroneous to follow that of the court below, which I think more favorable to the respondent. In State v. Sutton, 70 Iowa 268, the accused relied for his defense upon an alibi, the court omitted any special instructions as to it, but gave the jury a general direction to consider all the facts in the case and give the defendant the benefit of a doubt arising upon all the evidence, and the court held that the omission to instruct specially as to the alibi did not prejudice the defendant.
34. The next exception noted is to the charge upon the subject of introducing false evidence of an alibi. The jury were told that the introduction of false or fabricated evidence constituted a circumstance against the respondent and was an inferential admission of guilt but not conclusive; that the fact that he had been guilty of producing the false and fabricated evidence should be established beyond all question ; that if it was doubtful, no weight should be given it, i. e., to use the fact that he had offered and used false evidence as a circumstance against him the jury must be satisfied beyond all question that he was guilty of fabricating 'it, or in other words introducing it knowing it to be false. The charge was correct. State v. Williams, 27 Vt. 724.
35. Was the conviction under the second and third counts legal ? The second count was for burning the shed and barns under s. 4128 R. L. The third was for doing the same act with intent to burn the dwelling house under s. 4127 R. L. The same act was charged in both counts, but with different intent. There can be no objection to joining a count under each section in one indictment. It is often necessary to insert in one indictment many counts charging the crime in as many different ways, in order to meet the various phases of the case as developed by the evidence, and after a general ver[195]*195dict if one count is sufficient, and others bad, the court will promounce judgment upon the good count only; if all are good, judgment will be rendered upon the count charging the highest offence. State v. Hooker, 17 Vt. 658.
36. The last point in the respondent’s brief is a criticism upon ¡the charge, but not upon any legal question presented by the -exceptions, except such as have been above noticed.
Ho error is disclosed by the record, the respondent takes inothing by his exceptions ; the judgment is affirmed ; sentence imposed upon the verdict and execution ordered. ' . .
All concur.