decided: December 16, 1968.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
Author: Per Curiam
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In 1934, petitioner was indicted for murdering a policeman in Burlington, Iowa. Petitioner claimed that he was innocent and that he had not been present at the scene of the crime. At the trial, several witnesses testified that petitioner had been in Des Moines, 165 miles away from Burlington, on the day that the crime was committed. The trial judge instructed the jury that for the petitioner to be entitled to an acquittal on the ground
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that he was not present at the scene of the crime, the petitioner must have shown by a preponderance of the evidence that he was not present.*fn1 The jury found petitioner guilty of second-degree murder, and petitioner was sentenced to life imprisonment. His conviction was affirmed by the Iowa Supreme Court. State v. Johnson, 221 Iowa 8, 264 N. W. 596 (1936).*fn2
In this habeas corpus proceeding, petitioner argued, among other points, that the State had denied him due process of law by placing on him the burden of proving the alibi defense. The United States District Court for the Southern District of Iowa rejected this argument and denied the petition. The United States Court of Appeals for the Eighth Circuit affirmed. 386 F.2d 677 (1967). We granted certiorari to consider the constitutionality of the alibi instruction, along with other issues. 390 U.S. 1002 (1968).*fn3 After we granted certiorari, the
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Court of Appeals for the Eighth Circuit, sitting en banc, held in another case that the Iowa rule shifting to the defendant the burden of proving an alibi defense violates the Due Process Clause of the Fourteenth Amendment. Stump v. Bennett, 398 F.2d 111 (1968).*fn4 In view of that holding, we vacate the decision in this case and remand to that court for reconsideration.*fn5
MR. JUSTICE BLACK dissents.
386 F.2d 677, vacated and remanded.