People v. George Fong

BURNETT, J.

Defendant was convicted of committing “an act of sexual intercourse with one Clara Tom, a female person under the age of eighteen years and not the wife of said George Fong,” and he has appealed from the judgment and order denying his motion for a new trial.

Appellant contends for a reversal for one reason only, and that is that the court misdirected the jury as follows:

“The defendant pleads that he is not guilty of the offense charged and then interposes a defense that is known in law as an

alibi,

that is that he ivas not at the place where the crime charged is alleged to have been committed—but at another place, and I instruct you that such a defense is as proper and legitimate if proved as any other and all the

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evidence bearing upon that defense should be carefully considered by the jury.

“I further instruct you that if this evidence which is for the purpose of establishing an alibi is sufficient in your minds to create a reasonable doubt whether defendant was present at the place where the crime charged is alleged to have been committed, or at some other place where he could not have committed it, then you should give the defendant the benefit of such doubt and acquit him.

“I instruct you that the defendant is not required to prove his defense of alibi beyond a reasonable doubt to entitle him to an acquittal;

it is sufficient if he prove it by a preponderance of evidence or to sufficiently prove it to create a reasonable doubt in the minds of the jury

as to his presence at the time and place when and where the crime is alleged to have been committed.”

Appellant objects only to the italicized portion of the instruction, and, manifestly, it should have been omitted. There was, of course, no necessity for saying anything about proof “beyond a reasonable doubt” or “by preponderance of evidence,” as no such burden is cast upon the defendant in his efforts to establish an “alibi.” The law is well settled—and we need cite no authorities thereon—that it is sufficient to demand an acquittal if the jurors have a reasonable doubt whether the defendant at the time the offense was committed was at some other "place where he could not have committed it, but it is to be observed that in this very instruction the trial court very clearly so instructed the jury. The trouble is, of course, that the concluding portion is erroneous and renders the whole instruction somewhat obscure and confusing, but we are satisfied that the error should not be considered prejudicial to defendant and fatal to the judgment.