State v. Nelson
310 N.W.2d 777
S.D.
1981
Check Treatment

*1 Dakota, Plaintiff STATE Appellee, NELSON,

Lyle E. Defendant Appellant.

No.

Supreme Court of South Dakota.

Argued May

Decided Oct. *2 residence, Erickson, Gen., Pierre, proached the Gorder while a Atty. Asst. Jon R. plaintiff- appellee; passenger for and Mark V. Meier- dressed in a brown coat second Pierre, Gen., henry, Atty. chopped something on the brief. hat off and dark of the trailer. Coester, Milbank, for defend- William E. appellant.

ant and pickup A short time after left farm, Grooms, Danny Marcia Gorder Lord DUNN, (on reassignment). Justice appellant apprehended by and were Brookings City Police in front of the Holi- Nelson, Appellant, Lyle appeals from a Brookings, day Inn in South Dakota. Eva judgment pursuant entered to a ver- Williams, Inn, Holiday a waitress at finding guilty grand theft. He dict appellant, testified that she observed who penitentiary was sentenced to the state for cowboy in a black hat and tan dressed years. seventeen We affirm. jacket, pocket remove from his a metal Appellant argues that evidence intro- plate away and sticker and toss it as he testimony duced at to corroborate the trial patrol entered the car after his arrest. This satisfy accomplice of an was insufficient plate and sticker were identified as the agree. We do not 23A-22-8.1 tag corresponding metal identification and Lord, accomplice, appellant’s Marcia testi- belonging on the stolen trailer. sticker she, appellant Danny fied that Grooms and Estelline, at a farm house near arrived testimony accomplice of an Saturday, Dakota on South need not be corroborated evidence suffi Bismarck-Mandan, they Then traveled to cient to sustain a conviction. v. Mar State They North Dakota and took a trailer. tin, (S.D.1980); N.W.2d 102 v. State Estelline, returned with the trailer to South Moellar, (S.D.1979); State following Monday, Dakota the Willers, v. 64 N.W.2d 810 S.D. But, (1954). corroborating evidence (1) must tend to: affirm truth during Eunice Gorder testified that accomplice; testimony of the and estab morning observed a of March 1979 she v. lish the of the defendant. State pickup pull a horse black and white trailer Martin, Moellar, supra; v. State Estelline, onto her farm near Dakota. corroborating testimony of the State’s passengers She identified the three in the requirements. witnesses meets these Grooms; pickup wearing Danny as a male hat; jacket clothing, western brown testimony ap- associates Eunice Gorder’s and a female. and the other male Grooms pellant Danny with and Marcia Grooms passenger trailer and left it unhooked the the crime was Lord at or about the time 19, 1979, on Mrs. premises. her On March Martin, supra; committed. v. State State again pickup Gorder observed the same Drapeau, 45 189 N.W. 305 S.D. drive onto her same three individuals (1922). testimony of Mrs. Gorder farm and unhook horse trailer. Af- another Berjord appellant Blair hád appearance, ter the second Mrs. Gorder theft shortly of the stolen trailer after the immediately called the sheriff. sheriff appellant with the crime and with the links put out a radio alert based on Mrs. Gorder’s Martin, supra; accomplices. State State description. Vierck, Moellar, supra; Berjord (1909). Blair on the that a testified that morn- 120 N.W. 1098 Evidence ing 19,1979 pickup, person fitting description of March observed a he trailer, stop unhooking the stolen trailer and pulling the was seen passengers ap- plate and Gorder farm. One of the removed the metal provides: with the commission of the offense. SDCL 23A-22-8 defendant merely if it The corroboration is not sufficient A conviction cannot be had the testimo- offense, or the shows the commission of the ny accomplice of an unless is corroborated thereof. circumstances by other which tends to connect the facto, the “on or make about” instruction from the trailer allows inference sticker Wash.App. property. Danley, Fur- erroneous. of the stolen thermore, close between the 513 P.2d 96 See also association Verdugo, accomplice in area 109 Ariz. and an P.2d People Taylor, Mich.App. the crime was committed suffi- where com- State v. ciently connect the defendant *3 Correia, 655, the v. R.I. the to furnish neces- State 106 262 A.2d 619 mission of crime (1970). Rather, accomplice’s this court sary corroboration an testi- must examine of Moellar, jury supra; v. whether not the is misled the mony. State or State improperly supra. rejecting instruction into the al- Drapeau, Danley, supra. ibi. State v. testimony of the State’s wit case, appellant charged by In this was circumstantial, is but circumstantial nesses stealing with a horse trailer in requirements of satisfy evidence can the County, Morton North on or about Dakota Martin, corroboration. State 17, .bringing March 1979 and with the trail- Willers, 356, 64 810 75 State on or County, er into Deuel South Dakota (1954). trial, about 1979. Marcia March At We hold there was sufficient corrob during Lord direct testified examination prosecu orating presented by the prosecutor the on the that trailer was taken 23A—22-8 which pursuant tion Bismarck-Mandan, March from to connect with the com tended Dakota, brought North and was into Deuel the mission of offense. County, Dakota on March South Appellant trial, contends that the trial court’s as a in when Later the reexamined jury deprived defense, “on or about” instruction that witness for the Lord testified alibi defense. The instruction read: the of his she was of the date on which unsure might that have trailer was stolen and charges that of- The Information the Sunday, been on stolen ‘on or about’ cer- fense a she, Danny Lord also that Grooms testified proof tain date and not time. need Miller, appellant spent evening in certainty with the exact or establish date during ques- in Dakota the weekend South alleged. It time of the offense is suffi- produced Appellant tion. alibi evidence beyond cient if the evidence establishes a he, Danny that on Grooms reasonable doubt that offense was Miller, Dakota.2 were in Lord reasonably committed on date or time alleged in near the date or time the In- on crime could have occurred This formation. March, 1979, as 18th of either the 17th or trailer recognized property This court was taken from a closed has days. couple for a of precise time’when an offense was commit lot and not missed indictment, the 17th. read “on about” ted need not be stated in the indictment for 17th. Appellant of had an alibi unless time is the essence crime. “on explaining phrase jury 16 S.D. N.W. instruction State “Except prejudicial not where or about” was SDCL 23-32-17. he an alibi essence, give error view the fact that needed time is of the it is not of “Ali to be and 18th effective. happening an instruction that submits the for 17th the accused must show that anytime of the offense at within the limita bi evidence crime, not have committed the period.” tion could S.W.2d he of its (Mo.App.1976). the time commission The fact that an because at of- such not, than where ipso does was at a other interposed alibi defense is appeal object on to the introduction prosecuting at trial or Appellant did not serve evidence, issue this attorney alibi defense of his intention to written notice appeal. compliance us on before offer the defense alibi in therefore not However, SDCL 23A-9-1. did not Reiman, guilt; the inference of does not was committed.” State fense from the defendant’s failure to ex- (S.D.1979). According- arise possession from the fact of plain, but must alibi to be successful ly, appellant’s recently goods. duty stolen There is no presence time when his cover the entire explain goods. of such the crime. accomplishment of required for may explain his The accused Todaro, 153 N.E.2d 14 Ill.2d People v. time, not appropriate but he is re- Law Am.Jur.2d Criminal do Even if he does come quired to so. purported “[A] explanation, with an forward be the for the accused to possible leaves it required to it. believe at all.” 21 Am. guilty person is no alibi Fla., Young [1968, 217 So.2d 567] (citation Law 192 Jur.2d Criminal repug- nothing We find in the instruction omitted). the defendant’s constitutional nant to alibi, the Giving full credence to the statutory rights. appellant guilty in view of jury could find *4 interpretation of the law. We follow this testimony that she was an accomplice’s that the trial Appellant contends accompanied theft and eyewitness to the overruling in his abused its discretion court Estelline, Miller, to in appellant to and later jury panel ground on the objection to the corroborating testi ample accordance with brought into the court appellant that was testimony re in her mony. The conflict recog This court has room in handcuffs. was sto exact date the trailer garding the police officer a sheriff or other nized that finding by jury in their len was resolved prisoner in his right handcuff a has the overwhelming evi of in view conduct and to custody to secure his safe the trailer dence that stole bringing escape while guard against an Dakota. transported it into South Williams, to or from a courtroom. State the cir- that under It is our conclusion 547, 173 N.W.2d 889 84 S.D. about” this case the “on or cumstances of Hanrahan, N.W. 224 mislead the into instruction did not testimony that he not offer Appellant did rejecting appellant’s alibi de- improperly jurors while by prospective observed was fense. Williams, supra. We handcuffed. State the court’s Appellant contends that not abuse its court did that the trial hold 3 unconstitutionally shift objection. Instruction No. 20 overruling in discretion proof to ex ed the burden of judgment of the trial We affirm the allegedly prop stolen plain possession his of court. erty. objection to this instruction A similar Rober, in 86 S.D. was made J., WOLLMAN, and MORGAN C. (1972), 447, 197 wherein we HENDERSON, JJ., concur. stated: FOSHEIM, J., dissents. compel the testi- The instruction does FOSHEIM, (dissenting). Justice simply states mony of the defendant —it prejudicial er- Giving Instruction 17 was relating

a to circumstantial rule charged the defend- right to infer The information jury has a ror. from which the conviction, upon provided whole case that No. 20 reads: Instruction beyond you are satisfied and all of the evidence you If from are convinced be- the evidence guilt. the defendant’s a reasonable doubt of personal yond a reasonable doubt that possession you But if believe that the recent stolen, property question in and that soon was property, under the cir- the defendant of the was in after its theft the defendant shown, inno- it, you may is consistent with his cumstances cence, such is a circumstance him, your duty acquit it would be with all the other evi- take into consideration verdict, you beyond arriving your find a reasonable doubt and unless unless dence in satisfactorily explained case that the defend- such from other evidence in the brought upon added.) (Emphasis guilty. out the facts and circumstances ant is trial, it is sufficient which to base Informations, 119. But Indictments and in North stealing a horse trailer ant with 17, 1979, and not vitiate an indictment or surplusage about March will Dakota on or which, regard Dakota on or about bringing it into South without to the (cid:127) case in chief 1979. The definitely State’s surplusage, certainly alleges 17,1979 of theft. as the date showed matter, charge the offense.3 sufficient confronting record the defend- This was the “on or Since See his defense. presented ant when he allegation makes no difference in about” prejudice proof required, cannot substantial produced The defendant then Am.Jur.2d, Indictments and in* accused. he was evidence that on March Informations, Miller, Dakota.

Instruction 17 read: disagreement no point To I have this issue, however, charges the of- majority opinion. Information that cer- fense committed ‘on or about’ a allegation. was an instruction —not the involves proof need not tain- date and time. necessary for to estab- It was the State certainty the exact date establish with at the scene presence accused lish alleged. It is suffi- time of the offense must show the crime. “Alibi evidence beyond establishes cient if the evidence could not have committed the accused that that the offense reasonable doubt crime, the time of its alleged because at reasonably on a date or time at a other than he was commission near the infor- the date offense committed.” State where such mation. Reiman, (S.D.1979). opinion majority is correct test, evidence met *5 Corroborated gist is not of the essence or time “[w]here accomplice expressed uncer- after offense, precise time at which about, on, hedged the March 17 tainty charged to been offense have committed is indicated the theft could She then date. Am.Jur.2d, Indict- is not 41 material.” a different time. have occurred at Informations, (1968); 115 ments and § by testimony was followed Instruc- That 78, McDonald, 91 447 16 N.W. S.D. Jury Dakota Pattern 17 which is South tion The (1902); 23-32-17.1 indictment SDCL The Instruction 1—11—5. comments if it can be or information sufficient pertinent part: instruction read understood therefrom that the offense given be when this instruction Nor should filing, time of its prior committed of an presented evidence has by prescribed time the stat- and within the alleged in the informa- time Carmel, alibi and the utes of limitation. State 36 exactly correspond to the does not 293, tion (1915); 808 SDCL 23-32- 154 N.W. as of the offense of commission 12(5).2 words “on or about” are sur- Am.Jur.2d, evidence. by 41 the State’s plusage. shown prior That the offense committed At the information was filed SDCL the time filing or the indictment informa- 23-32-17 the time of read: precise [.] tion the offense was time at which 577; 1978, 178, replaced, by Repealed § ch. SL not in the indictment committed need be stated 1979, 1978, 178, 1, by information, July SL ch. 67 may effective (SDCL 23A-6-7). but it be to have filing any been time before thereof, except time is a material when the 115, Furney, 21 P. 41 Kan. State v. ingredient 3.Accord of the offense. Express 1978, 178, 577; Co. v. Common Repealed replaced, Adams by 213 SL ch. (1906), wealth, 160, Ky. 1, 1979, 1978, 178, revd. 124 92 S.W. 932 July 71§ SL ch. effective point (SDCL 27 S.Ct. 23A-6-9). 206 U.S. on another State, (1907); Tingue St. 90 Ohio L.Ed. 2. At time the information was filed SDCL Franks, 108 N.E. 23-32-12(5) read: Moore, (1922); State v. P. 258 Okl.Cr. if indictment sufficient (1909); Patrick v. P. 293 36 Utah it can be understood therefrom: State, Wyo. 98 P. 588 progeny This is the effect nullifies instruction of what is his alibi defense. State v. Jury now Instruction California Criminal (Mo.App.1976); 535 S.W.2d 261 (4th ed.) No. 4.71. comment to CAL- Bowles, (Mo.1962); State v. 360 S.W.2d 706 JIC No. 4.71 states that the instruction is Chittim, (Mo.1953). State v. S.W.2d inappropriate when the defendant has comparable game The situation is to a presented alibi evidence for the time the cards with deuces wild. After it is discov- people’s evidence fixed the commission of player deuces, ered one holds all the crime. changed jacks rules are to make one eyed Jones, People In 9 Cal.3d 108 Cal. and aces also I accordingly wild. would Rptr. (1973), police 510 P.2d 705 offi reverse. purchase cer testified that the final of mari juana from the defendant was made on 1970. The defendant offered ali

bi evidence that he had been in Texas on discrepancy date. There was no time allegation

between proof. The Su

preme Court of California nevertheless held

it was error under such circumstances to give the “on or about” CALJIC No. 4.71 Edna M. STEELE and Thomas J. Bat because the date was crucial to cheller, Appellants, Plaintiffs and the alibi defense. It follows that when an alibi defense is PFEIFER, Nelson, Peg Ada E. Robert E. interposed, surplusage what was in the alle- gy Nelson, Johnson, I. Elton F. Karmen gation longer is no irrelevant and time Johnson, Johnson, C. Kandace C. Karla be of importance.” “decisive Johnson, Lynn Lee Henrickson Clark, 509 (Mo.App.1974). S.W.2d 740 That Henrickson, persons Josefina R. and all importance is indicated our alibi notice any unknown who have or claim to have statute, Contrary 23A—9-1.4 interest in or lien or encumbrance indications in majority footnote 2 of the premises Complaint, described in the opinion, the fact that SDCL 23A—9-1 was Appellees. Defendants and utilized, did not affect the defendant’s *6 right present an alibi defense. This stat- No. 13202. discovery option ute is a tool for use Supreme Court of South Dakota. procedures pros- the State. While its are initiated, operates provide ecution it also Argued March time, specific date Oct. Decided place prosecution. claimed See 12.1, U.S.C.A., Fed.Rules Cr.Proc. rule

Historical Advisory Note and Notes of

Committee on Rules.

When the defendant is committed to an place, time and unfairness if occurs expanded frame then shifted or

the minds jury. of the The defendant

trapped and an “on or about” instruction in upon prosecuting attorney (Rule 12.1(a)) SDCL 23A-9-1 written notice reads: of his intention offer a defense of alibi. The specified Within the time in § 23A-8-4 for specific place places notice shall state the motions, pretrial upon written demand of the where the defendant claims he was at the time prosecuting attorney time, date, stating the alleged offense and the names and ad- at which the offense was commit- ted, dresses of the witnesses whom he intends days, a defendant shall serve within ten rely to establish such alibi. direct, at such different time as the court