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State v. Simmering

Supreme Court of Arizona

April 12, 1961

STATE of Arizona, Appellee,
Jean Marie SIMMERING, Appellant.

[89 Ariz. 262] Larry L. Dier, Tucson, Attorney for appellant.

Wade Church, former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., Harry Ackerman, Pima County Atty., and Fred R. Sands, Deputy County Atty., Tucson, for appellee.

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

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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 defendant 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. m. 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[89 Ariz. 263] 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 [sic] 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 [89 Ariz. 264]

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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 ...

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