State v. Coffelt , 33 Wash. 2d 106 ( 1949 )

The defendant submitted no requested instruction on the defense of alibi to the court. The court correctly instructed the jury on the defense of alibi. No exception was taken to the instruction. No assignment of error is predicated upon it. So far as this case is concerned, it must be conclusively presumed that the jury was correctly instructed on the defense of alibi.

The appellant complains of subsection (d) in the third instruction of the court. It will be noticed that instruction No. 3 as set out in the opinion is a general one, applying to all of the counts in the information. The appellant was acquitted on count IV.

It will also be noticed in the instruction complained of that the date on count II is definitely fixed as of November 23, 1947, and that no date on count I is given in that instruction. The import and meaning of clause (d) in the third instruction is no more than that the offenses in all the counts must have been found to have been committed within three years last past, that being the statutory period of limitations. In the face of a correct instruction on the defense of alibi, does inclusion of subsection (d) in instruction No. 3 — "that said assault occurred within three years last past" constitute reversible error? Appellant concedes that it is a proper instruction where a defensive alibi is not interposed. Indeed, in the absence of a defense of alibi it would have been reversible error to have omitted clause (d), because it would have permitted conviction for an offense against which the statute of limitations had run.

Does that proper and usual instruction become reversible error because a defense of alibi has been interposed? I think not. Where a proper instruction is given on the defense of alibi, I agree that it can be omitted in a case where the date relied on falls within the statutory period, and that its omission would not be reversible error, but I do not agree that including it amounts to any more than surplusage, since it only tells the jury to find the obvious fact that dates within the statute of limitations are within the statute. It was not reversible error. Whatever the rule in State v. Severns, 13 Wash. 2d 542,125 P.2d 659, may be, the record in this case allows us no opportunity to apply it, since the appellant is not complaining about the court's instruction on alibi.

I concur in the decision as to count III and dissent as to counts I and II.

STEINERT and ROBINSON, JJ., concur with MALLERY, J.