The defendant was charged with „the crime of murder. His defense ivas that of alibi—he claiming that, at the time the deceased was killed, he (defendant) was at certain'' rooms about three blocks distant from where the murder was committed. Upon that question the evidence was conflicting. And upon that state of facts the defendant, through his counsel, requested the court to charge the jury as follows: —

This instruction the court below refused to give, but in its stead gave the jury as the law upon the subject of alibi the following:—

The instruction requested was substantially correct, ánd should have been given. The charge given was incorrect, and *255 should not have been given. The commission of a criminal offense implies, of course, the presence of the defendant at the necessary time and place. Proof of an alibi is, therefore, as much of a traverse of the crime charged as any other defense, and proof tending to establish it, though not clear, may, nevertheless, with the other facts of the case raise doubt enough to produce an acquittal. A reasonable doubt of the defendant’s presence at the time and place necessary for the commission of the crime would seem necessarily to raise a reasonable doubt of his commission of it. But according to the charge of the court below, the defendant was not to have the benefit of any doubt in regard to the alleged alibi, unless the jury should find as a fact that he Avas at another place than the place of shooting Avhen the shooting occurred. It is ob\7ious that the finding of that fact would itself have established the alibi, and that would have ended the case of the prosecution. But proof tending to establish an alibi, though insufficient of itself to establish that fact, is not to be excluded from the case. Whatever doubt, if any, such testimony may raise in the minds of the jurors, is for their consideration; and if its Aveight, alone or added to that of other evidence in the case, be sufficient to reduce belief in their minds as to the defendant’s guilt, to a reasonable doubt, they should acquit; for in every criminal case, Avhen all the proof is in, the final question for the jury is, are all the essential averments of the indictment proved beyond a reasonable doubt?

The dying declaration of the deceased was properly admitted in evidence, but the declaration included some matter foreign to an instrument of that nature, and which should have been excluded by the court beloAV from the consideration of the jury. We allude to the following statement of the declarant : —

Dying declarations are restricted to the act of killing, and to the circumstances immediately attending it and forming a part of the res gestee. When they relate to former and distinct transactions they do not come within the principle of necessity on which such declarations are received. (Wharton’s Crim. Ev. § 278; 1 Greenleaf on Ev. § 156; State v. Draper, 65 Mo. 335 ; Leiber v. Commonwealth, 9 Bush, 11 ; Moses v. The State, 11 Humph. 232 ; The State v. Shelton, 2 Jones, 360 ; Nelson v. The State, 7 Humph. 542 ; Hackett v. The People, 54 Barb. 370 .)

Judgment and order reversed and cause remanded for a new trial.

McKinstry, J., Sharpstein, J., McKee, J., Myrick, J., and Thornton, J., concurred.