State v. Hamlin

• Decision Date: 07 June 1943
• Docket Number: 38060
• Parties: State v. Paul Hamlin, Appellant
• Court: Missouri Supreme Court

171 S.W.2d 716

351 Mo. 157

State v. Paul Hamlin, Appellant

No. 38060

Supreme Court of Missouri

June 7, 1943

Appeal from Madison Circuit Court; Hon. Taylor Smith Judge.

Reversed and remanded.

R P. Smith for appellant.

When the information and all of the testimony for the State confines the issue as to the offense to a single date, and the defense consists of an alibi covering that date, it is error to submit an instruction authorizing the jury to convict upon finding of an offense "at any time within three years prior to the filing of the information." State v. Socwell, 318 Mo. 742, 300 S.W. 680; State v. Campbell, 324 Mo. 249, 22 S.W.2d 645; State v. Fellers, 140 Mo.App. 723, 127 S.W. 95; State v. Taylor, 345 Mo. 325, 133 S.W.2d 336.

Roy McKittrick, Attorney General, and John S Phillips, Assistant Attorney General, for respondent.

The trial court did not commit error in the submission of State's Instruction 1. If any error was committed it was harmless. State v. Schmittzehe, 3 S.W.2d 235; State v. Baumann, 1 S.W.2d 153; State v. Allen, 246 S.W. 946; State v. Tatman, 264 Mo. 357, 175 S.W. 69; State v. Dowell, 331 Mo. 1060, 55 S.W.2d 975; State v. Proffer, 159 S.W.2d 681; State v. Crouch, 339 Mo. 847, 98 S.W.2d 550; State v. Barr, 340 Mo. 738, 102 S.W.2d 629; State v. Cutter, 318 Mo. 687, 1 S.W.2d 96.

OPINION

Tipton, J.

The appellant was convicted in the circuit court of Madison County, Missouri, of stealing a steer, and the jury assessed his punishment at two years in the penitentiary.

The information charged that the appellant stole one black, whitefaced yearling steer on or about the 30th day of June, 1939, and all the evidence showed that this steer was stolen on June 30, 1939. The defense was an alibi.

The appellant does not contend the evidence was insufficient to sustain the verdict, but does contend that instruction Number One was erroneous in that it conflicted with the instruction Number Two.

Instruction Number One permitted the jury to find appellant guilty if the jury found that he committed the theft complained of "on or about the 30th day of June, 1939, or at any time within three years next before the 29th day of August, 1939, the date of the filing of the Information herein, . . . ," while instruction Number Two told the jury that if "you have a reasonable doubt of the presence of the defendant at the time and place where the offense was committed, you will find the defendant not guilty." All the evidence showed the crime was committed on June 30, 1939. The appellant's evidence tended to show that he was not present at the time and place where the crime was committed. These instructions are contradictory. Instruction Number One directed a verdict of guilty if the theft of the steer was committed at any date within a three-year period prior to the filing of the information. The other directed an acquittal unless the theft was committed on one certain date as testified to by the State's witnesses. As previously stated, the evidence definitely fixed the time of the commission of the crime. That was the issue presented by the State and accepted by the defense. There was, therefore, no foundation upon which to place an instruction as to any other time as was done by the State.

In the case of State v. Socwell, 318 Mo. 742, 300 S.W. 680, l. c. 684, this exact question was before this Court and in disposing of the case, we said:

"While the state may show that a crime was committed within the period of the statute of limitations prior to the filing of the information, yet where the evidence unequivocally shows that an offense was committed on a certain date, and the defendant presents an alibi as to that certain date instructions, one of which authorizes a conviction within the limitation period and the other directs an acquittal if the defendant was not present on the date the state's evidence shows the crime was committed, confound and confuse the jury. Such an instruction as the one given for the state fails to hold the jury to the point in...