Warner v. State

508 P.2d 525, 1973 Alas. LEXIS 353

• Court: Alaska Supreme Court
• Decided: April 13, 1973
• Docket: Nos. 1629, 1637
• Status: Published

Opinions

PER CURIAM.

The single issue raised in these consolidated appeals is whether an alibi instruction must be given in a case where the facts support the request for such an instruction and where one is requested in the trial court. This court answered that question affirmatively in the case of Ferguson v. State,¹ some five weeks before the trial of these cases. Unfortunately, Ferguson was not cited to the trial court by appellants or appellee even though the identical issue was raised in this case.

Appellee now urges us to reconsider the position adopted in Ferguson and takes strong issue with the opinion on whether the rule adopted therein is a majority or minority one so far as precedent is concerned. After due consideration, we find the rule requiring an alibi instruction is the better reasoned approach for it serves to remind the jury of the main factual dispute in the case and to guard against the erroneous belief by jurors that the defendant has the burden of proving alibi.²

Reversed and remanded for a new trial.

FITZGERALD, J., not participating.

1 . 488 P.2d 1032, 1039 (Alaska 1971).

2 . Id. at 1038.