Passafiume

Defendant was charged with the crime of assault with a deadly weapon with intent to commit murder. He was convicted of assault with a deadly weapon. He appeals from the judgment and from an order denying his motion for a new trial.

That the victim of the assault—a police officer named Delaney—was shot by some person at the time and place described in the evidence is a fact established beyond dispute. The defendant was positively identified by witnesses as the man who did the shooting. His defense was that of an alibi by introducing testimony tending to prove that he was at another place at the time of the assault, and therefore could not have been guilty of this crime.

It is conceded that the evidence is sufficient to sustain the verdict. But it is contended that the defendant was seriously prejudiced by erroneous instructions of the court to the jury. In the questioned instruction concerning the defense of alibi, the court said: “While you are not to hesitate at giving this as a defense full weight—that conclusive effect to which, when established, it is justly" entitled, either as entirely satisfying you of the .innocence of the defendant or as creating the reasonable doubt…