People v. Helzer

Danhof, P. J.

Defendant was convicted by a jury of gross indecency. MCLA 750.338; MSA 28.570. On July 7, 1972, he was sentenced to a term of one to five years in prison.

The information alleged that the offense occurred "on or about July 27, 1971”. The complaining witness was nine years of age at the time of the alleged offense. He testified that defendant performed an act of fellatio upon him, but was unable to specify an exact date. He did testify that the incident took place on a weekday, between 3 p.m. and 6 p.m., one or two weeks before the Rogers City Centennial, which began on July 30, 1971. He further testified that the alleged act took place on the same day his parents drove a car for his father’s part-time employer north across the Mackinac Bridge. Before leaving, the boy’s parents gave him permission to go fishing with the defendant and the defendant’s five-year-old stepson. The boy did not inform his parents of the alleged crime until approximately one month thereafter. Neither defendant’s stepson, in whose presence the crime was alleged to have been committed, nor the boy’s parents testified at trial.

Defendant did not take the stand at trial, but presented an alibi defense through other witnesses. It was established with a fair degree of certainty that the boy’s parents crossed the Mackinac Bridge on at least one occasion on July 20, 1971. A representative of defendant’s employer in charge of business records testified that defendant had been paid as a member of the galley crew of the ore vessel S.S. "Munson” for working the hours of 7:30 a.m.-l p.m.; 3:30 p.m.-6 p.m. from July 16, 1971 to July 31, 1971. On July 20, 1971, the "Munson” was in Buffington, Indiana. Upon cross-examination, the witness conceded that he could not state with certainty whether defendant actually worked the hours for which he was paid. Furthermore, he testified that on occasion men employed on the ore boats which are in their home port switch shifts with other men. The "Munson” was in defendant’s home port of Rogers City on July 27, 1971.

On appeal, defendant raises a number of issues for our consideration. Our resolution of one necessitates reversal and remand for new trial.

The people proposed for the trial court’s consideration the following instruction:

"I further charge you that this offense of gross indecency is one where the time or day that the offense was committed is not of the essence. In other words, in this case where the offense was alleged to have occurred on or about the 27th day of July, 1971, should the proof have shown any other possible date so long as it is within the statute of limitations, then the offense charged can be regarded as proven. If you find that the offense of gross indecency was, in fact, committed, the date that it was committed is not a material element of the offense.”

This instruction was based on the following language from People v Swift, 172 Mich 473, 488; 138 NW 662, 668 (1912):

"Time was not of the essence of this offense. It could be stated in the information as one time, and the proof might show another; evidence could be given of such an act within the jurisdiction of the court and the statute of limitations, and the act indicated by the evidence could thenceforth be deemed the act charged.”

Defense counsel vigorously objected to the above-quoted proposed instruction. He argued that he had never attempted, from the day of the preliminary examination to trial, to confine the people to a specific date for the alleged offense. However, he claimed that the boy himself had in his testimony given certain reference points which confined the offense alleged to the last half or possibly the entire month of July, 1971. He claimed that the proposed instruction would deprive defendant of his alibi defense. The trial court took the question under advisement, but thereafter instructed the jury in substantially the same form as proposed by the people. This was error.

The above-quoted language from Swift, supra, went to the issue of variance between the proofs and the complaint. The people are entitled to some latitude in fixing the date of the offense. Where, as here, the date is not alleged with particularity, variance is not fatal provided the verdict is confined to the particular act within the scope of the complaint upon which the people introduce evidence for the purpose of procuring a conviction. People v Leneschmidt, 260 Mich 671; 245 NW 544 (1932). People v King, 365 Mich 543; 114 NW2d 219 (1962). However, Swift does not sanction an instruction such as the one at issue here. This can be readily seen from the instructions as quoted thereafter in Swift which confined that jury’s de^ liberations to the 23rd of November, as had been alleged, or some date prior thereto during that same month of November, for which there was support in the record. In the instant case, the jury should have been similarly instructed to confine its deliberations to a time period supported by the record. People v Brocato, 17 Mich App 277, 286; 169 NW2d 483, 487 (1969).

Defendant also alleges error in the trial court’s instruction on gross indecency. The jury’s function in determining guilt or innocence upon a charge of gross indecency is set forth in People v McCaleb, 37 Mich App 502, 507; 195 NW2d 17, 19 (1972). See also People v Ferguson, 45 Mich App 697; 206 NW2d 812 (1973).

Reversed and remanded for new trial.

Quinn, J., concurred.