State v. Simmering ( 1961 )

BERNSTEIN, Vice Chief Justice

(dissenting) .

I agree with the majority that the disputed instruction was error and that the Colvin case should be overruled. However, I cannot agree that the error did not constitute reversible error. The instruction in effect states that time is immaterial in the. proof of the crime alleged.

The issue presented by the uncontradicted testimony was that the defendant committed’ the act of forgery between the hours of.' 2:00 and 5:00 P.M. on August 10, 1959'.. The defendant, after having given advance notice to the state and the court of her intention to offer testimony to establish an alibi pursuant to rule 192, subd. B, Rules of Criminal Procedure, 17 A.R.S., proceeded to defend by alibi. The defendant by raising the defense of alibi thus made the time of the commission of the crime a material issue in the case. Hash v. State of Arizona, supra; State v. Chittim, Mo., 261 S.W.2d 79; State v. Pace, 187 Or. 498, 212 P.2d 755; State v. Waid, 92 Utah 297, 67 P.2d 647; State v. Cooper, 114 Utah 531, 201 P.2d 764; People v. Waits, 18 Cal.App.2d 20, 62 P.2d 1054; State v. Coffelt, 33 Wash.2d 106, 204 P.2d 521; State v. Severns, 13 Wash.2d 542, 125 P.2d 659. There was no foundation upon which the jury could have found that the crime occurred at any other time. Under the disputed instruction given by the trial court that:

“ * * * 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 the Information. * * * ”,

it was possible for the jury to believe the alibi and yet find the defendant guilty beyond a reasonable doubt by reasoning that the state’s witnesses were mistaken about the exact date, thus nullifying the effect of the alibi. State' v. Chittim, supra.

There can be little doubt that this instruction was erroneous. Instructions must be applicable to the proof offered in the trial. A jury cannot go outside the evidence presented in rendering a verdict. Pacific Greyhound Lines v. Uptain, 81 Ariz. 359, 306 P.2d 281; Eldredge v. Miller, 78 Ariz. 140, 277 P.2d 239.

In State v. Severns, supra, the court stated [13 Wash.2d 542, 125 P.2d 667]:

“It may be admitted that it is sufficient, in the absence of the defense of an alibi, to charge and prove that the act was committed on or about a certain date, and within three years next preceding the filing of the information, but when the complaining witness has fixed the exact time when the act charged was committed, and the defense is an alibi, the commission of the crime on the exact date so fixed is the controlling issue, and the jury should be instructed that they must find the act to have been committed at that time. State v. Morden, 87 Wash. 465, 151 P. 832.” State v. Severas, supra; State v. Coffelt, supra.

In considering this rule this court said in Hash v. State of Arizona, supra [48 Ariz. 43, 59 P.2d 308]:

“We do not understand that the court in State v. Hart, 119 Wash. 529, 205 P. 836, 837, cited by defendant, has laid down a different rule. In that case the question was the applicability of the instructions to the proved or admitted facts. The court there held that if the evidence show, or it is admitted, that the act relied upon occurred at a particular time and place, it is error to instruct the jury, where the defense is an alibi, 'that the exact date is immaterial,’ if the prosecution was commenced before the crime was barred by limitation. The court was announcing the universal rule: That the instruction must always have same relation to and bear upon the facts of the case." (Emphasis ours.)

It is impossible, after the verdict, to ascertain which instruction the jury followed or what effect the erroneous instruction had in their deliberations. In such case the giving of the erroneous instruction is prejudicial to the right of the defendant to have a fair trial. See, e. g., State v. Waid, 92 Utah 297, 67 P.2d 647.

The majority fails to recognize the significance of the erroneous instruction but instead discounts it as technical and harmless error by saying it did not mislead the jury. manner the error can he considered merely technical and harmless. The law in safeguarding the rights of a defendant in having a fair trial by jury permits the jury alone to weigh the evidence and determine the credibility of the witnesses. In weighing the evidence the jury is limited to the evidence presented at the trial. Such responsibility is given the jury for the common sense reason that they and not the appellate court observe the demeanor of the witnesses, observe the interest or lack thereof of the witnesses and can thus determine the weight to be given to each witness’ testimony. An instruction, such as the present one, permitting the jury to speculate outside the evidence in their deliberations substantially affected this right and constituted fundamental error. I am unable to conceive in what

This court does not decide the issue of guilt, does not consider the credibility of the witnesses, and does not invade the jury’s province.

The majority in weighing the evidence concerning the defendant’s alibi chose to give greater weight to the state’s witnesses. In reviewing the record, I find that the alibi evidence was not equivocal as the majority states. There were two witnesses called by the defendant in support of her alibi. On direct examination both unequivocally stated she worked both shifts on August 10. They remembered it was the 10th by recalling that the night chef quit that day necessitating the defendant to remain for the second shift as a fry cook. On cross-examination the witnesses stated that the chef was off or quit a number of times but could not remember any specific date that occurred except August 10th. Mr. Greene had testified that defendant worked the second shift with him on August 10th. At no time during direct or cross-examination did he state it was on another day. However, by taking the following testimony given on cross-examination, out of context, the majority claim such alibi evidence was equivocal.

“Q. The fact is, is it not, Mr. Greene, that it might have been August the 11th or it might have been August the 12th or it might have been August the 7th that this cook quit and Mrs. Simmering filled in and worked a double shift ? A. The reason I remember that particular day was on account of this shift and we had a kind of argument there and I remember it so well, and that was on the 10th.

* * * * * *

“Q. It was someplace around August the 10th, was it? A. Yes, sir.”

The majority’s disregard of the defendant’s alibi evidence and finding that it “was at best equivocal” involved the weight of the evidence and the credibility of the ■witnesses which is the exclusive province of the jury.

The use of the harmless error doctrine means that the justices of this Court are returning their own verdict independent of the jury’s, and based on this record on appeal. The justices are able to and do disregard the improper matter, but they cannot determine whether the jury did. Such a verdict based upon printed testimony results in a juryless trial. The majority here has refused to reverse because they concluded that the case was strong and the alibi evidence equivocal, although that conclusion turned on the majority’s opinion as to the credibility of the witnesses and the weight to be given the evidence.

Are we thus to disregard errors no matter how substantial if upon a review of the evidence we are satisfied with the jury’s verdict? Eventually such a determination will simply mean the abolishing of all the forms of law taught by experience to be necessary for the protection of the innocent, and the decisions of criminal cases on appeal will be based solely upon the facts as revealed by the cold record on appeal. If we are to maintain our system of trial by jury, the right of every defendant to be tried in accordance with the rules of criminal procedure, the rules of evidence and the established law must be respected.

“ * * * It is often better that one guilty man should escape than that the . general rule evolved by the dictates of justice for the conduct of criminal prosecutions should be disregarded and discredited.” Maxwell v. The Director of Public Prosecutions, (1935) A.C. 309.

The judgment should be reversed and remanded for a new trial.