COMMONWEALTH vs. EZELLE J. MCLEOD.

BRAUCHER, J. The defendant appeals under G. L. c. 278, Sections 33A-33G, from a conviction of armed robbery, claiming error in the exclusion of reputation evidence and in the judge's charge to the jury. We ordered the case transferred from the Appeals Court to this court on our own motion under G. L. c. 211A, Section 10 (A). We hold that the errors claimed are not properly presented, and affirm the conviction. We take the occasion, however, to disapprove alibi instructions in the style upheld in Commonwealth v. Webster, 5 Cush. 295, 319 (1850).

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We summarize the testimony. About 4 P.M. on November 5, 1971, the victim was walking on a street in Roxbury, and was pushed into a passageway, beaten and robbed. The victim remembered the defendant as one of the assailants by reason of his remarkable likeness to one of the victim's students, and picked the defendant's photograph out of about 1,000 photographs provided by the police. The defendant's employer testified that the defendant was in his presence between 1 P.M. and 3 P.M. and again between 4:30 P.M. and 7 P.M. on the day of the crime. He also testified that his tenants said the defendant "was very honest on something that he found and returned." The defendant's attempts to elicit other testimony to the defendant's reputation for honesty were unsuccessful, but the only exception taken in this connection was to the judge's remark that a letter from the employer to counsel for the defendant did not contain anything about truth and veracity. The letter is not included in the record before us.

No exception was taken to the judge's charge to the jury, but error is assigned to two portions of the charge. First, as to identification of the defendant by the victim: "What motive did he have to lie? . . . It is for you to say. You can use your common sense and judgment if somebody stuck you up, and you got a look at him, would you ever forget it? It is for you to say." Second, as to alibi evidence: "That is a defense, according to the Supreme Court, which is often brought about by collusion, connivance, and perjury, and subornation of perjury, and a jury is advised to look at it very critically because it is something that can be manufactured, and as you have probably learned by this time in your service here, something that is very commonly manufactured."

The defendant was convicted and sentenced, and he appealed. His exceptions do not bring to us the questions he argues. As to the exclusion of evidence, cf. Commonwealth v. Baker, 348 Mass. 60, 63-64 (1964); Commonwealth v. Cass, 358 Mass. 805 (1970). As to the need

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for exceptions to the judge's charge, see Commonwealth v. Myers, 356 Mass. 343, 346 (1969); Commonwealth v. Foley, 358 Mass. 233, 236 (1970). The record presents no substantial risk of a miscarriage of justice and no patent or prejudicial error.

We think it appropriate, however, to warn again against the clear error which would be involved if the burden of proof as to alibi evidence were put on the defendant, as was done in Commonwealth v. Webster, 5 Cush. 295, 319, 324 (1850). See Commonwealth v. Leaster, 362 Mass. 407, 416-417 (1972), and cases cited. Cf. Sullivan v. Scafati, 428 F. 2d 1023, 1025-1026 (1st Cir. 1970), cert. den. 400 U.S. 1001 (1971). It is therefore unwise to refer to alibi as a "defense." Indeed, we think it is not ordinarily helpful to single out alibi evidence for subjection to "rigid scrutiny" and the like. If such a charge is given, it should also be pointed out that an alibi may be the only refuge of the innocent. For a charge which avoids these difficulties see Devitt & Blackmar, Federal Jury Practice and Instructions Section 11.31 (1970). [Note 1]

Judgment affirmed.