State v. Simmering

361 P.2d 4, 89 Ariz. 261, 1961 Ariz. LEXIS 217

• Court: Arizona Supreme Court
• Decided: April 12, 1961
• Docket: 1178
• Status: Published

Opinions

UDALL, Justice.

Defendant was charged with forgery on or about the 10th day of August, 1959. Her chief defense was alibi. The jury returned a verdict of guilty. On appeal defendant’s sole assignment of error is the giving of a certain instruction hereinafter referred to. For the reasons given hereinafter, we conclude there was no prejudicial error and that the conviction must therefore be affirmed.

Although the allegation of the information was that the crime was committed “on or about” the 10th day of August, all the state’s proof shows that it was in fact the 10th day of August between 2:00- and 5:00 p. m. The facts presented at trial showed that on that day three forged checks were passed in the city of Tucson. Although ■ clefendant was charged with the forgery of only one of the checks there were three positive eyewitness identifications of defendant as the person passing the checks. The state further presented evidence positively identifying the handwriting on the checks as defendant’s.

Defendant’s alibi evidence was at best equivocal. She testified that she worked two shifts that day (August 10, 1959) at the Ozark Cafe. The shifts were from 7:00 a. m. to 3:00 p. m., and from 3:00 p. tn. to 11:00 p. m. She nowhere said that she remained at the cafe at all times during the shifts despite the fact that the state’s witnesses positively testified to seeing her at three places other than the cafe during that afternoon. One of defendant’s witnesses produced a time card which showed that defendant worked only the morning shift. Another witness said he remembered working the second shift with defendant some time around the 10th of August; according to the time cards in evidence that would have been the 11th. He did not testify concerning any time prior to the second shift, nor between the hours of 2:00 and 3 :00 p. m. No other testimony even remotely helps defendant’s alibi. Aside from alibi testimony defendant offered only her own denial that she forged the check charged.

In the face of this evidence the trial court gave, among others, the following instructions:

“You are instructed that the State need not prove that the crime charged was committed on the exact day or days charged in the Information. If you find that the Defendant committed the crime as I have defined it to you, it is then sufficient, if the evidence shows beyond a reasonable doubt the crime was committed on or about the 10th day of August, 1956 [sic], and before the filing of this Information. Incidentally, the Information in this case was filed on the 28th of December.

“The Defendant has interposed in this case what is known as an alibi. In law, an alibi is an effort to show that the Defendant did not commit the crime charged against him because at the time he was in another place so far away that he could not have committed the alleged crime or in a situation preventing him or her from committing the crime charged in the Information.

“The burden of proof never rests upon the accused to prove his innocence or to deprive — or to disprove the facts necessary to establish the crime with which she is charged, nor does this burden of proof rest upon the accused when he undertakes to prove an alibi. The Defendant’s presence at or participation in the commission of the crime or [iic] affirmative material facts that the State of Arizona must prove to your minds beyond a reasonable doubt before you can convict the Defendant.

“You are further instructed that you must carefully consider all of the evidence in the case, including the evidence relating to the alibi, and determine from the whole evidence whether or not it is shown beyond a reasonable doubt that the Defendant committed the crime alleged, and if by reason of the evidence in relation to such alibi you should entertain a reasonable doubt, then it is your duty to return a verdict of not guilty although you may not be able to say that the alibi has been fully proved. (Emphasis supplied.)

Defendant complains of the giving of the first quoted paragraph concerning the duty of the state to prove the exact day the crime was committed. Under Rule 118, Rules of Criminal Procedure, 17 A.R.S., this paragraph correctly states the law. And, by a mere imposition of a defense of alibi defendant cannot compel the state to elect an exact day. Hash v. State, 48 Ariz. 43, 59 P.2d 305; State v. Walker, 83 Ariz. 350, 321 P.2d 1017. However, defendant claims that where the defense is alibi and the state does make an election, as in this case where all the state’s evidence positively fixes the day of the crime on August 10th, the time of the crime becomes a material element and an exception to the general rule arises. Defendant cites authority for the position that under this exception the giving of the disputed instruction might tend to mislead the jury. See, e. g., People v. Waits, 18 Cal.App. 2d 20, 62 P.2d 1054; 53 Am.Jur., Trial, § 645.

Defendant admits that State v. Elias, 74 Ariz. 374, 249 P.2d 941, and State v. Colvin, 81 Ariz. 400, 307 P.2d 106, seem to hold contrary to her position but asks us to overrule those cases. The facts of both cases were essentially the same as the case at hand in that both cases involved the defense of alibi and state’s proof positively fixing the time of the crime. From the Elias case we cannot tell what instruction was given nor the context in which given. However, as set out in the opinion, we can see how the instruction given in the Colvin case might tend to mislead the jury. In so far as the Colvin case is authority for giving the instruction there given in that context or is inconsistent with our expressions here, it is expressly overruled.

In considering whether an instruction might tend to mislead the jury, the instructions should be considered as a whole and isolated sentences or portions of an instruction should not be separated from the context in which it is given. Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141, 125 A.L.R. 3; State v. Sorrell, 85 Ariz. 173, 333 P.2d 1081; State v. Vallejos, 89 Ariz. 76, 358 P .2d 178.

Applying this test to the case at hand we do not think it was reversible error to give the disputed instruction (considerably different in emphasis from that given in the Colvin case) in view of the instructions concerning alibi which followed this one. We think that any possibly misleading concepts embodied in the disputed paragraph were dominated and controlled by the central thought of the alibi instruction, obtruding itself from the beginning to the end of each paragraph, to the effect that the burden was on the state to establish defendant’s guilt beyond a reasonable doubt and that the state had not met its burden if the alibi evidence and all the rest of the evidence taken together left the jury in any doubt that the state had proved the defendant’s presence at or participation in the crime. Singh v. State, 35 Ariz. 432, 280 P. 672, 67 A.L.R. 129.

The jury could not go beyond the range of the evidence offered by the state to prove guilt. Everything in the instructions given tended to confine the jury to the evidence offered and in no way authorized or suggested that the jury could go beyond the range of the state’s evidence in fixing guilt. Thus the combined impact of state’s evidence, limited as it was to the exact date of August 10th, and a proper and liberal alibi instruction gave defendant the full benefit of the defense of alibi.

In view of the total impact of the instructions as a whole coupled with the state’s multiple positive identification of the defendant as the forger both by eyewitnesses and handwriting comparisons counterbalanced only by the most equivocal alibi evidence, we do not think the instruction complained of was prejudicial. The judgment of the trial court is affirmed.

STRUCKMEYER, C. J., and JENNINGS and LOCKWOOD, JJ., concur.