Roberts

Defendants have been convicted of the crime of grand larceny, and appeal from the judgment and order denying their motion for a new trial. They introduced evidence tending to establish an alibi, and, as bearing upon this *378 branch, of the case, the court gave the jury the following instruction: “You are instructed that if the defendant, or the defendants, was at some other place at the time it is alleged or proven that the crime was committed, it is what in law is called an alibi. When satisfactorily proven, it is a good defense in law. Whether or not an alibi was proven and established to your satisfaction in this case is a fact for you to decide from all the evidence introduced before you, and if you believe that the defendants, or either of them, was not present at the time it was alleged or proven that the crime was committed, and therefore could not have committed the crime charged in the information, and did not aid or abet in its commission, then you should find him, or them, not guilty.”

The foregoing instruction is attacked by defendants. It is first claimed that the instruction is erroneous in assuming as a fact that the larceny was proven. Under the constitution of…