Fenner v. Commonwealth

In Fenner v. Commonwealth, 152 Va. 1014, 148 S.E. 821 (1929) the Supreme Court held that alibi is not an affirmative defense. See id. at 1019, 148 S.E. at 822. "Alibi is regarded by some courts as a special affirmative defense, but the better doctrine seems to be that it is not a defense in the accurate meaning of the term, but a mere fact shown in rebuttal of the State's evidence; and, consequently, the evidence introduced to support it should be left to the jury, uninfluenced by any charge from the court tending to place it upon a different footing from other evidence in the case or calculated to disparage and excite prejudice against it." "Thus, where the evidence offered by the defendant is of an alibi - that is, that he was at another place at the time the crime was committed, and therefore could not have committed it - he is obviously merely disproving the truth of the prosecution's evidence or inference from evidence; he is making an entirely negative defense. It is not for him to establish an alibi, but simply to throw doubt on the case of the prosecution." 152 Va. at 1019-1020, 148 S.E. at 822-823.