Thomas appeals from a judgment of conviction on an indictment charging:

The indictment was based on the felony created by 18 U.S.C. § 912 , as follows:

While it is true that neither the President nor a United States Senator has the power to stay the execution of a death sentence of a state court, here the indictment charges Thomas with pretending to be an officer and acting under authority of the United States and acting “as such” pretended officer with such pretended authority. The Supreme Court holds on a similar statute that even if the pretense be of holding an office that does not exist and acting as if it did exist, the statute is violated. United States v. Barnow, 239 U.S. 74, 77 , 36 S.Ct. 19 , 60 L.Ed. 155 . Referring to pertinent provisions of the similar preceding statute, that Court states 239 U.S. at page 80 , 36 S.Ct. at page 22 :

Cf. United States v. Lepowitch, 318 U.S. 702, 704 , 63 S.Ct. 914 , 87 L.Ed. 1091 ; Russell v. United States, 9 Cir., 271 F. 684, 685 .

The pertinent portions of the agreed statement of facts are that the testimony was uncontradicted that a telephone call was made on January 2, 1953 at 11:35 P.M. from the only telephone located at the Looking Glass Tavern, 2103 North 45th Street, Seattle, Washington, by a person at the tavern at that time, who transmitted the message above set forth orally through the telephone to Ruth Beck, the Western Union operator located in the Seattle office.

There was no other testimony by any other persons with respect to receipt of the call or conversations with the person who transmitted the message through the telephone. After its receipt by Ruth Beck at the Western Union office in Seattle, the telegram was transmitted at 11:58 P.M. January 2, 1953, from the Western Union office in Seattle to the Western Union operator at Walla Walla, Washington, and from there the message was delivered to the Warden of the Washington State Penitentiary at some time after 12:01 Á.M. on January 3, 1953.

The Government introduced witnesses who testified they were in the Looking Glass Tavern at 11:35 P.M. on January 2, 1953, and that they then saw the defendant using the only telephone available at the tavern at that time. None of the Government witnesses at the Looking Glass Tavern heard any of the conversation of the defendant except one Government witness, Don Thomas, who testified that all he heard in the conversation of the defendant were the words “Western Union” and “Wilson Brothers”. None of the Government witnesses at the tavern knew to whom the defendant was talking or what he was saying. These Government witnesses further testified that they heard the defendant or his wife ask the bartender at the tavern for change in quarters and heard the quarters fall into the coin box of the telephone at the tavern.

Senator Warren G. Magnuson appeared at the trial and testified, first, that he did not personally send the message, either through the telephone, telegram, or other means of transmission, and further, that he did not authorize any one to send the message on his behalf.

The testimony adduced on behalf of the defendant was to the effect that the defendant had been in the tavern with his wife between 7:00 P.M. and 8:00 P.M. and between 10:00 P.M. and 10:20 P.M. on January 2, 1953; that he had used the telephone in the tavern at about 10:15 P.M. for the purpose of calling his mother-in-law, and that he had returned to his home at 10:30 P.M. and remained there all evening; and that he was at home at the time the message was telephoned in to the Western Union operator at Seattle from the tavern.

This testimony as to a telephoning by Thomas at fifteen minutes after ten was not contradicted and he thus had alibi evidence which warranted an inference by the jury that the witnesses as to the 11:35 telephone had confused the earlier telephone with the later and that at the time the 11:35 message to the Warden was sent he was at his home.

On the question of Thomas’ alibi an instruction was given sua sponte by the court, the District Court of the Western District of Washington, as follows:

The court apparently assumed that in such a federal felony case the law of the State of Washington controlled, for the instruction is taken bodily from a leading Washington supreme court case, State v. Rosi, 120 Wash. 514, 515 , 208 P. 15 .

Although it seems obvious that the burden is on the Government to prove affirmatively that the accused was at the place where the crime was committed and he committed it there, Falgout v. United States, infra, 279 F. 513 , the State of Washington and other states hold an alibi is an affirmative defense, like others it cites, of which it states:

With the instruction having this meaning to the learned Washington judges of the Rosi case, it is obvious that in the instant case the jurors or some of them would regard it as requiring them to go through the mental process of determining that this affirmative defense had been established by Thomas before finally arriving at his guilt or innocence.

The contrary respecting prosecutions in the federal courts is the stated law of six circuits, no circuit holding otherwise. No burden of proof is on the accused regarding an alibi. In Glover v. United States, 8 Cir., 147 F. 426, 430 , that circuit considered the following instruction concerning a claimed alibi:

and held it erroneous on the following ground:

Similarly, the Fifth Circuit in Fal-gout v. United States, 279 F. 513, 515 , reversed for failing to give the following instruction,

the court holding that the presence of the accused at the place of the alleged crime is a part of the affirmative ease of the prosecution, as follows:

The Sixth Circuit cites and follows Glover v. United States, supra, in Can-gelosi v. United States, 6 Cir., 19 F.2d 923 . The Second Circuit in a dictum agrees with the Glover case, United States v. Vigorite, 2 Cir., 67 F.2d 329 . So also the Tenth Circuit in reversing in Reavis v. United States, 10 Cir., 93 F.2d 307, 308 , and the Third Circuit in reversing in United States v. Marcus, 3 Cir., 166 F.2d 497, 504 .

Thomas was denied certain instructions which we hold properly denied since so far as pertinent they were covered by the instructions given. Also, certain evidence proffered by Thomas was clearly irrelevant and the exceptions taken were deemed invalid.

The judgment is reversed.