Hymen D. Goldberg, Tucson, for appellant.
Robert Morrison, Atty. Gen., H. B. Daniels, Asst. Atty. Gen., and Raul H. Castro, County Atty. of Pima County, Tucson, for appellee.
UDALL, Chief Justice.
Thomas Hershal Colvin (defendant-appellane) was convicted by a jury of the [81 Ariz. 401] crime of aggravated assault upon the person of one Bertha Schochow. After denial of motions in arrest of judgment and for a new trial, the court rendered judgment of conviction against defendant and imposed an indeterminate sentence of not less than one year nor more than eighteen months in the State penitentiary. This appeal followed.
This is a companion case to State v. Colvin, No. 1087, 81 Ariz. -, 307 P.2d 98. While separate complaints were filed before the magistrate against Margaret and her son Tom, a consolidated preliminary hearing was conducted, but thereafter separate trials were held in the superior court. Both defendants, however, were represented throughout by the same counsel, and the same prosecutors represented the State. This explanation is made because many of the assignments of error and propositions of law urged in case No. 1087, supra, are identical with those presented on this appeal. We shall, therefore, in this decision, avoid a discussion on the points determined in the companion case.
The record is crystal clear that the incident relied upon by the State to establish a felonious assault by defendant occurred at the Twin Pines Rest Home in Tucson on Sunday evening, august 21, 1955, between 8:30 and 9:00 p. m. Esther Bristow, one of the attendants, testified that Mrs. Schochow had been calling for her son Wilbur, and at that time she saw defendant Tom Colvin enter the room occupied by Bertha Schochow and Elizabeth Naas; thereafter Mrs. Bristow observed the following:
'He went up to her (Mrs. Schochow) and slapped her across her mouth and she put up her arm to protect herself and he hit it aside and slapped her again and told her to shut her mouth because she had been fed and had her hair combed and stuff, she should shut her mouth.'
Mrs. Naas, the other aged occupant of the room, whose testimony given at the preliminary hearing was read to the jury, corroborated this testimony, though defendant would have us believe Mrs. Naas testified solely about another incident occurring on August 20th. Unquestionably she was somewhat uncertain and vague as to the exact date, but the jury may well have concluded Mrs. Naas was referring to the same incident.
Defendant took the witness stand in his own defense. While he flatly testified he did not slap Mrs. Schochow at the time relied upon by the State, nor at any other time, his principal defense, nevertheless, was an alibi. Unequivocally he testified he left the rest home the evening in question between 6:30 and 6:40 p. m. and did not return until approximately 10:45 p. m. The testimony of several friends and acquaintances[81 Ariz. 402] corroborated defendant, i. e., placed him elsewhere at the time of the alleged assault. Hence, defendant was in no wise handicapped in the presentation of his evidence to prove an alibi. The issue was clear cut. The jury elected to believe the State's witnesses.
Defendant assigns as error the giving of the following instruction:
'Another element that you must find is that the crime charged was committed some time before the filing of the information which, in this case, was on September 16, 1955, but the State is not bound to prove the alleged crime was committed on any particular day as the State has the right to prove the alleged crime was committed on or about August 21st, 1955, the date alleged in the information as long as it is proved to have been committed at any time within five years prior to the filing of the information.' See, Section 44-725, A.C.A.1939.
Coupled with this is another assignment based upon the court's refusal to give an instruction submitted by defendant which would have limited the jury's consideration to whether the offense charged was committed on 21 August, 1955, and on no other day. Basically defendant's argument is the same as that made in State v. Elias, 74 Ariz. 374, 376, 249 P.2d 941, 942, and in Hash v. State, 48 Ariz. 43, 59 P.2d 305, namely, that when, as here, the defense is an alibi, time is an important issue to defendant. The contention was expressly rejected in both cases; we need only determine if the elements as stated in the Hash case, supra, were satisfied here. There an instruction was challenged which stated that the exact date alleged in the information was immaterial. In upholding its correctness, the court stated as follows:
'While the identification and isolation as to time and place of the act relied upon are necessary, the precise day or date of its occurrence need not be designated. But if the election is that it occurred on or about a given date, * * * it is sufficient under the law, and evidence supporting such election will sustain a conviction.' 48 Ariz. at page 51, 59 P.2d at page 308.
The information filed against Tom Colvin recited the occurrence of the alleged offense as 'on or about the 21st day of August, 1955', and at the trial the act relied upon was even more specifically identified and isolated. Taking judicial notice of our own records it appears the charge given here by the trial court is essentially the same as that given in the Elias case. We adhere to the ...