State v. Simmering
361 P.2d 4
Ariz.
1961
Check Treatment

*1 over anxiety cases); defendants’ awareness his that a will condition, his his wife’s his for disturbed any concern when is there reason- possible evidence feelings support customers’ toward him (citing it. ” cases).’ business, detriment to his his concern safety children, their the health and of his Judgment affirmed. possible filial affection him and sub- toward STRUCKMEYER, J., BERNSTEIN, C. sequent they harmful effects him when saw J., V. C. and UDALL LOCKWOOD, officers, escorted home and the loss JJ., concur. respect neighbors, his be- then it jury’s province came the under the evi- to make a decision the matter. made that decision and determined that 361 P.2d 4 severity was disturbance sufficient $1,000. recovery of merit Under the Arizona, STATE Appellee, must abide circumstances we their de- cision. Jean SIMMERING, Marie Appellant. Zapien

While Dan No. 1178. ar party procurement in the Supreme Court of Arizona. as to conflicting rest there was April 12, 1961. were known whether facts of arrest de participated illegal him and he against Consequentlythe judgment tention. binding.

him is valid and al., Sturges Tongeland et said:

“ questions In considering repeatedly we have laid nature rules, that where

down conflict, is in we will not opinion our thereof for that

substitute court, (citing ; cases) the trial will be taken in the strongest appellee in favor of the and in

manner

support findings, (citing of the court’s

Her chief defense was alibi. The appeal returned a guilty. verdict of On assignment of error sole herein- of a giving certain *2 after referred For the reasons to. prej- hereinafter, there was no conclude udicial conviction error and that the therefore affirmed. informa-

Although allegation tion was “on that the crime was committed day August, all or about” the 10th of proof fact state’s that it was shows day between 2:00- trial p. presented at 5:00 m. The facts checks day forged that on that three showed Al- of Tucson. passed city were n charged with though clefendant was only forgery of the checks one positive identifica- eyewitness were three person passing as the of defendant tions presented evi- further The state checks. identifying handwriting positively as defendant’s. on the checks alibi evidence was at best Defendant’s Dier, Tucson, Attorney for L. Larry that worked equivocal. She testified she appellant. day (August 1959) that at two shifts Church, Gen., Stirley Atty. former Wade from The shifts were Ozark Cafe. Gen., Harry Newell, Atty. Asst. former p. m., p. and from 3:00 to 3:00 tn. 7:00 a. m. County Atty., R. Ackerman, and Fred Pima She nowhere said that she p. to 11:00 m. Atty., Tucson, Sands, Deputy County cafe all times during at the at remained appellee. despite the fact state’s shifts UDALL, testified to positively seeing her Justice. places during other than the cafe three at charged forgery with Defendant wit- afternoon. One August, day of the 10th about or produced a time card which showed charged against nesses him because morning only the that defendant worked the time he place another so far remembered away shift. Another witness said he that he could not have committed working defendant the alleged the second shift with pre- crime or in a situation August; venting some time around the 10th of him or her committing according charged to the time cards in the Information. He did would have been the 11th. “The proof burden of never rests testify prior to concerning any time upon the prove accused to his innocence shift, between the hours second nor deprive or disprove —or testimony p. No other 2:00 and 3 m. :00 necessary facts to establish the crime alibi. remotely helps defendant’s even with charged, which she is nor does of- testimony Aside from proof burden rest the accused forged her own denial that she only fered when he prove undertakes to an alibi. charged. the check presence at partici- Defendant’s pation in the commission trial of this evidence the In the face material [iic] affirmative facts others, gave, among the State prove Arizona must to your *3 instructions: beyond minds a reasonable doubt before “You are instructed you can convict the Defendant. prove charged crime need “You are further instructed you days day on the exact was committed carefully consider all of the evi- you find charged in the Information. case, dence in the including the evi- Defendant the crime that the alibi, relating dence to the and deter- you, then as I have defined to mine from whole evidence whether sufficient, beyond if the evidence shows beyond or not it is shown a reasonable com- reasonable doubt crime was the Defendant doubt that committed the day about the mitted on or 10th alleged, reason August, [sic], filing 1956 and before the in relation to such alibi you Incidentally, of this Information. entertain reasonable doubt, Information in this case was filed duty to it is return a your then verdict of December. although you may not be that the say to alibi has been fully interposed “The Defendant has in (Emphasis supplied.) proved. is known an this case what as alibi. law, an alibi is an effort complains Defendant show of the giving quoted paragraph that the Defendant did not commit the of the first concerning the 264 day given prove the exact the Colvin

duty might the state to case tend to 118, mislead the jury. Rule crime was committed. Under so far as Colvin A.R.S., Procedure, authority case is 17 for giving of Criminal Rules the instruction law. paragraph correctly that context this states or is inconsistent expressions defense with our imposition here, And, expressly a mere it is compel the state overruled. alibi defendant cannot State, 48 day. Hash v. elect an exact In considering whether an instruc Walker, 43, 305; Ariz. 59 P.2d might tion tend to mislead jury, However, 350, 1017. 321 83 Ariz. P.2d instructions should be as considered a whole that where defendant claims and isolated portions sentences of an election, make an the state does is alibi and instruction should not separated from the evi- all the state’s in this case where context in which given. it is Kinsey v. day positively fixes State, 49 201, Ariz. 65 P.2d 1141, 125A.L.R. time of 3; Sorrell, 85 Ariz. excep- element and a material becomes 1081; State Vallejos, 358 Defendant general rule arises. tion to P .2d 178. under position that authority for the cites disputed giving of exception the this Applying this test to the case at might tend to mislead instruction hand we do not think it was reversible Waits, Cal.App. People 18 See, g., e. to give disputed error (con Trial, 1054; Am.Jur., P.2d 2d siderably emphasis different from that § Colvin case) in view of the instructions concerning alibi which followed Elias, 74 that State v. admits Defendant any one. We think that possibly mis Ariz. leading concepts disputed embodied 400, 307 P.2d seem Colvin, paragraph were position dominated and controlled contrary asks hold thought the central of the alibi The facts of instruc those cases. overrule us to tion, obtruding beginning itself essentially the same as the were cases paragraph, the end of each to the effect both cases involved hand *4 the burden was the state to establish proof alibi and state’s beyond guilt defendant’s a reasonable doubt fixing the time of the crime. positively had and that state not met its burden cannot tell case we what Elias From if the alibi evidence and all the rest of the given nor context was instruction together taken left However, jury evidence as set out in the given. which proved state had any doubt how the instruction we can see opinion,

265 presence participation at or the. effect states that time is immaterial 432, Singh State, the crime. proof v. alleged. of the crime 672, 280 P. 67 A.L.R. 129. The presented by issue the uncontradicted range go beyond The could not testimony was the defendant committed’ by of the evidence offered state the act forgery between of.' the hours prove guilt. Everything instruc- 2:00 and 5:00 10, P.M. on 1959'.. August jury to tions tended to confine the defendant, The after having given advance way offered author- evidence and in no notice to the state and the court of suggested go ized could intention to testimony offer to establish beyond range of the state’s pursuant alibi 192, B, rule Rules subd. fixing impact guilt. Thus the combined Procedure, Criminal A.R.S., proceeded evidence, limited as it of state’s by to defend alibi. The defendant proper exact date raising the defense of alibi thus made gave alibi instruction and liberal time of the commission of the full benefit of defense of alibi. material issue the case. Hash v. State impact of the total the instruc- view Mo., Arizona, supra; Chittim, coupled with state’s whole tions as 79; Pace, 261 S.W.2d State v. 187 Or. positive multiple identification of the de- 755; Waid, P.2d 92 Utah forger by eyewitnesses fendant 647; Cooper, 67 P.2d State v. 114 Utah comparisons handwriting counterbal- 764; People Waits, 201 P.2d equivocal the most only anced evi- Cal.App.2d 1054; 62 not think the dence, do instruction com- Coffelt, 521; 33 Wash.2d 204 P.2d prejudicial. plained of Severns, Wash.2d court is affirmed. trial no 659. There was foundation which have found could that the crime STRUCKMEYER, J., and C. JEN- any other time. occurred Under LOCKWOOD, JJ., concur. NINGS disputed instruction trial that: BERNSTEIN, Vice (dis- Chief Justice “ * * *

senting) you . find that the De- as I have fendant with that the dis- agree I you, sufficient, it is then it to defined was error and that puted beyond shows a reason- However, overruled. Colvin doubt committed on agree that the error did not con- I cannot day August, error. The instruction in about the reversible 1956- stitute *5 court said filing considering the rule this the before [sic], and ”, Arizona, supra in Hash v. State of [48 Information. 59 P.2d 308]: believe possible it was the defendant yet find and “We do not understand that reasoning doubt beyond a reasonable Hart, 119 Wash. mistaken witnesses were the state’s by defendant, 205 P. cited has nullifying the date, exact thus about laid down a different rule. In that Chittim, supra. alibi. State' v. effect question case applicability was the instruc- that this be little doubt can There proved of the instructions to the be must Instructions erroneous. tion was admitted facts. The court there held trial. proof offered applicable to the show, that if the evidence itor ad- is pre- outside go juryA cannot mitted, upon act that the relied occurred Grey- Pacific rendering a verdict. sented particular place, at a time and er- is 359, 306 81 Ariz. Uptain, hound Lines v. jury, ror instruct the where the de- Miller, 281; Eldredge v. alibi, is an 'that the fense exact is date 277 P.2d 239. prosecution immaterial,’ was com- menced before barred Severns, supra, v. State the court The court announcing limitation. 542, 125 P.2d 667]: Wash.2d stated [13 rule: That the universal the instruction suffi it is admitted may be “It always have same relation to and cient, the absence bear the case." (Em- facts of prove that and charge alibi, to an phasis ours.) a certain about on or committed act was pre years next three date, within and impossible, verdict, after is information, filing ceding instruction the jury ascertain which fol- has complaining witness when but or what effect the lowed erroneous instruc- act when exact time fixed had in their tion deliberations. In such committed, de charged was giving of the erroneous instruction alibi, the commission fense is to the prejudicial of the defendant fixed is the date so exact on the See, fair g., trial. to have e. State issue, controlling Waid, 297, 67 92 Utah P.2d 647. they must find the instructed recognize signifi- fails to at that been have act erroneous instruction but Morden, cance time. Wash. discounts as technical and harm- Severas, supra; instead P. 832.” by saying it did not error mislead the supra. less Coffelt, day necessitating what the defendant conceive am unable to I merely fry remain for the second shift cook. can considered the error he manner safe- On The law cross-examination stated technical harmless. having quit that the chef off or a number of rights of a guarding alone by jury permits fair trial times could any specific not remember *6 determine and weigh the evidence except to date that occurred August 10th. weigh- credibility the the of witnesses. Mr. Greene had testified that defendant the to limited jury is ing the evidence the worked August the second shift with him on re- presented the trial. Such 10th. At no cross- during time direct the given for sponsibility is examination another did he it on state was they and sense reason that common day. However, by taking the of appellate the demeanor court observe testimony given cross-examination, out witnesses, there- lack observe the interest or context, of majority alibi claim such can thus determine the witnesses and of of equivocal. testi- each witness’ weight to be to “Q. is, The not, fact Mr. present instruction,

mony. An such as Greene, that it might August have been one, speculate out- permitting the the 11th or it might have August been evidence in their deliberations side the the 12th or might August have been substantially con- affected this and the 7th quit that this cook and Mrs. stituted fundamental error. Simmering filled in and worked a dou- decide court does not the issue of This shift ble ? The A. reason I remember credibility guilt, does consider of particular that day was on account of witnesses, does not and invade shift and had a argu- kind of jury’s province. well, ment and I remember it so weighing The and that was on the 10th. give greater concerning the weight the state’s witnesses. chose [*] [*] [*] [*] [*] reviewing record, I find that someplace “Q. around equivocal alibi evidence was not August Yes, was it? A. majority states. There were two witnesses sir.” support the defendant called of majority’s disregard direct examination un- alibi. On both The the defend- equivocally finding stated alibi evidence and she worked shifts ant’s that it “was They equivocal” weight 10. involved the remembered it was at best quit credibility recalling night evidence and the of the chef

.268 n general province rule exclusive evolved which is the dictates justice pros- for conduct of criminal disregarded ecutions should be and dis- doctrine the harmless error The use of credited.” Maxwell The Director are justices of this Court means Public Prosecutions, A.C. (1935) independent returning their verdict own The be reversed on this record on jury’s, and based of the remanded new trial. do are to and appeal. justices The they matter, improper disregard the did. whether

cannot determine printed testi- a verdict based

Such juryless trial.

mony in a results reverse because has refused

majority here strong the case

they concluded P.2d 9 equivocal, although alibi evidence majority’s turned on conclusion MOORE, Executor Estate Robert C. Blankenship, deceased, credibility the witnesses opinion as J. T. Appellant, the evidence. weight to be *7 disregard no matter we thus to errors Are MENGES, Appellee. Tony upon a review how substantial No. 6567. jury’s with the we are satisfied Supreme of Arizona. Eventually such a determination Court verdict? abolishing of all the simply mean will April by experience taught to be lawof forms innocent, protection of the necessary appeal of criminal cases

and the decisions solely the facts as be based

will appeal. cold record

revealed system trial our to maintain arewe every be

by jury, crimi- with the rules of in accordance

tried of evidence rules procedure,

nal respected. law established

“ often better that one escape than that the man should .