State v. West , 1 Or. App. 422 ( 1970 )

SCHWAB, C. J.

Defendant appeals from a conviction upon trial by jury of assault and battery, being armed with a dangerous weapon. He contends that the trial judge erred in not holding the state to its election during the course of trial of a date certain upon which the crime took place. The indictment charged him with committing the crime, “on or about the 12th day of January, 1968.”

His victim, one French, and a witness, one Schultz, were certain that the crime took place in the early morning hours of a Friday in January of 1968, but were uncertain whether that Friday was January 12, 13 or 14.

At the close of the state’s case, defense counsel moved that the state be required to elect a date certain. The state elected January 13, 1968.

Defense counsel recalled French and Schultz and with the aid of a calendar demonstrated that January 13, 1968, was a Saturday and not a Friday.

The trial judge then indicated that he would not hold the state to its election of January 13, 1968, saying to defense counsel:

“I made Mr. Welch [the deputy district attorney] elect * * *, he got excited, thinking the 12th was Thursday and Friday was the 13th. He didn’t check a calendar. Now, the important part is it doesn’t jeopardize the defendant because within the last fifteen minutes, Mr. Welch elected to use the 13th. The indictment says the 12th, I don’t think it jeopardizes the defendant one single bit, if you are prepared for an alibi, you are prepared for the 12th * °

The trial judge’s ruling was correct.

Affirmed.