Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1897-04-01
w. r. BADGETT, WIN.

who has testified in the case, ac-
cordiugly as the testimony Of such
witness, or his or her manner Of
giving it, shall impress their
minds as being worthy or unworthy
of belief You may consider the
age, intelligence or interest in the
case or apparent prejudice, IL any,
and all other circumstance in evi.
dence before you in determining
the credibility Of the witness. In
passing upon the credibility of
any witness and the weight to be
attached to his or her testimony,
you should, in connection with all
the other facts and circumstance
proven, take into account the con
duct and appearance oi such wit
ness upon the stand, and the in
terest OF such witness in the result
of the trial, tho motives actu.
ating the witness in testifying, the
probability Of the statement of
such witness and his or her incli-
nation to speak truthiully or other
wise as to matters within his or her
knowledge.
ALIBI.
Ia this case the defendent does
not controvert the allegation Of the
indictment in so far as the killing
of the deceased is concerned. The
fact of the killing and the circum-
stances attending it are conceded
in this case to be true as alleged in
the indictment, except that the de-
tendant claims that he was else
where at the time the offense is al
legged to have been committed and
that he is not the person who COM
mitted the crime. II this be true,
it being impossible that the ac-
cused should be at two places at
this same time, it is a fact incon-
sistent with that sought to be
proven, and excludes its possibil-
ity. This is a defense often at.
tempted by contrivance, suborna.
ton and perjury. The proof,
therefore, offered to sustain it is to
be subjected to a rigid scrutiny;
because, without attempting to
control or rebut the evidence of
facts sustaining the charge. it at
tempts to prove aflirmativeiy an
other fact wholly inconsistent with
it; and this defense is equally
available, if satisfact orily estab-
lished, to avoid the force of posi-
tive, as of circumstantial evidence.
The burden of proving an alibi in
this case is upon the defendant.
In considering the strength of
the evidence necessary 10 sustain
this defense il is obvious that ell
evidence tending to show that the
accused was in another place at the
time the ofiense is alleged to have
been committed is in direct con-
flict with that which tends to prove
that he was at the place where the
crime was committed, and that he
actually committed it. In this
conflict of evidence, whatever
tends to support the one theory
tends in the same degree to rebut
and overthrow the other; and it is
for the jury to decide where the
truth lies. On this subject you
are instructed that il you believe
from the evidence in this case that
the defendant was at the house of
his mother in the town Of Vinita at
the time the alleged crime was
committed, your verdict should be
for the defendant. The defendant
is not required to prove an alibi
beyond a reasonable doubt; but it
is sufficient If you are satisfied by
a preponderance of the testimony
that the defendant was at the
house Of his mother in the town OF
Vinita at the time the crime al.
legged in the indictment was com
mitted. BY a preponderance OF
the evidence is not meant a greater
number Of witnesses, but a greater
weight of testimony. II the cir
cumstances in evidence taken to-
gether in your judgment outweigh
the testimony Of any number oi
witnesses then you will be author
lied to award the preponderance to
the circumstances and render your
verdict accordingly. But you Will
remember that il from all the evi.
dence there is a reasonable doubt
of the defendants guilt he must be
acquitted, whether that doubt
arises from a defect in the evidence
on the part of the government, or
from evidence introduced by the
defendant. If, however, you be.
lieye from all the evidence in the
case beyond a reasonable doubt,
such a reasonable doubt as the
court has defined in these instruc.
tions, that the defendant was at the
town Of Welch in the Northern dis.
trict Of the Indian Territory, on OF
about the Both day Of December,
1896. at the time and place where
the alleged murder was committed
and that he did, at that time and
place, kill the deceased in the
manner and form set forth in the
indictment, you will return YER
diet Of guilty.
II you should find the defendant
guilty, you may qualify your YER