No. 13084 

### IN THE SUPKEMli COURT OF THE STATE OF WNTANA 1976

STATE OF MON'IAXA, Plaintiff and Respondent,

-vs

# - JOSEPH THERON HALL, Defendant and Appellanr.

Appeal from: District Court of the Eleventh Judicia1District, Honorable Robert C. Sykes, Judge presiding. Counsel of Record : For Appellant: nonald L. Shaffer argued, Libby, Montana For Aespondent : Hon. Robert 

### Td. Woodahl, Attorney General, Helena,

Montana 'dilliam J. Anderson, Assistant Attorney General,

argued, Helena, Montana 'dilliam A. Douglas argued, County Attorney, Libby,

Yontana

Submitted: August 

### 30, 1976 !)ecided: 

## ~tp 2 ;Mr. JusticeWesley Castles delivered the Opinion of the Court.
This 

### is an appeal from a judgment entered inthe district court, Lincoln County, on a jury verdict finding the defendant guilty of grand larceny. Sometime during the weekend of August 17 toAugust 20, 1973, a food storage trailer and cookhouse of the Canyon Logging Company, where defendant Joseph Theron Hall had been employed

as a cook for some time, were broken into and a large quantity of foodstuffs taken. Atthe time of thisbreak in the camp, located atBunker Hillnear Eureka, Montana, was closed due to fire conditions in the area. The break inwas discovered on August 20, 1973, by the logging supervisorwho had gone to the camp tobe certain it

was closed down properly. Investigationby the Lincoln County sheriff's department resulted in the filingof an Information in district court, December 

### 5, 1974, charging defendant with the felonies of first degree burglary and grand larceny. The Information stated the offenses charged occurred "on or about the 19thday of August, 1973." On December 

### 6, 1974, defendant's counsel fileda notice of intent to rely on the defense of alibi and a 

### list of supportive witnesses, pursuant to the requirements of section 95-1803(d), R.C.M. 1947. Trialheld on thismatter was commenced February 

### 24, 1975. Atconclusion of the state's case, the defendant's motion for a directed verdict dismissing the charge of burglary inthe first degree was granted. Defendant alsomoved for a directed verdict

on the charge of grand larceny based on the allegation that the state's evidence was not sufficiently specific as to 

### timeof theoffense. This motion was denied. The stateoffered proof indicating the offense charged could have taken place anytime between the early evening, Friday, August 17, tonoon Monday, August 20, 1973. Attrialdefendant's defense consistedmainly of testimony of several alibiwitnesses for the period from the night of August 18, 1973through the morning of August 20, 1973. No testimony 

### was presented regarding the period prior to that time. Defendant argues on appeal that the state's proof that the offense could have occurred over 

### a three day period was in variance with the Information date of August 19, 1973, and denied him fairnotice todefend with alibiwitnesses forAugust 17 and 18. This appeal 

### is from thejudgment and the order denying a motion for a new 

### trial after defendant 

### was found guilty of grand larceny. Section 95-1503, R.C.M. 1947, inpertinent part, states 

### a charge shall: 

## "(c) Charge the commission of an offense by:

"(4) stating the time and place of the offense as definitely 

### as can be done

# ** *." (~mphasis added.) In Stateex rel. Borberg v. District Court, 125Mont. 481, 488, 489, 240 P.2d 854, this Court stated: "Perfection 

### isnot required inthe pleading of a criminal cause

# *** [and] 

### is seldom attained

# ** *.I' The Court also stated inBorberg: 

# "*

# * *the use of the phrase 'on or about' a certain day of a certainmonth inthe year 1950 incharging such offense simply indicates that the time alleged 

### was statedwith approximate accuracy. Statev. Terry, 77 Mont. 297, 250 Pac. 612; Statev. Thompson, 10Mont. 549, 27 Pac. 349."The-use of approximate date language should have served to put the defendant on notice the state intended toprove the crime

was committed within a reasonable period of time prior toor subsequent to the date on the Information. The location of the break inand the difficulty indetermining the exact time of the offense dictated the state's use of the less precise "on or about" language. Defendant concedes time 

### is not ordinarily a necessary ingredient of the offense of grand larceny. He argues, however, that notice of intent torely on a defense of alibiasrequired by section 95-1803(d), R.C.M. 1947, gives the statenotice time may become an essential fact of the proof required to convict the accused. Assertion of the alibidefense does not change the nature of the crime charged here. Defendant should have rea.lizedthe statewould present evidence proving the crime took place sometime inthe period between shutdown of the camp and discovery of the break in. Defendant cannot restrict the state's case by merely asserting intent torely on an alibidefense for a limited period of time within which the crime could have occurred. Further, inrequesting a new trial, defendant failed to seek the proper relief ifhe wished toprotect himself from any prejudice allegedly incurred by use of an approximate date in the charging Information and the proof offered attrial. The action suggested inStatev. Rogers, 31Mont. 

### 1, 4, 77 P, 

### 293, would have been appropriate. In that case, under circumstances very similar to those presented here, the Court said: 

### "*

# ** the defendant might not be prepared to prove an alibias to any day except that named in the information. But the defendant in such a case may protect himself by asking for permission to subpoena other witnesses, or, if necessary, to ask for a continuance, and the action of the court thereon would then become a proper sQbjectforreview on appeal." (Emphasis added.)Section 95-1803(d), R.C.M. 1947, provides inpertinent part:
" 

# *

# * After the trialcommences, no witnesses may be called by the defendant in support of these defenses, unless the name is included on such 

### list, except upon good cause shown

# ." (Emphasis added.) Even though this section requiring advance notice of the defendant's intent to utilize an alibidefense was not enacted until 1967, it provides for a modification of thewitness list upon a showing of good cause by the defendant, and protects him from the type of prejudice alleged tohave occurred here. If defendant felthis defense of alibiwas jeopardized atthe close of the state's case, his proper course would be to seek 

### a continuance to have time toprepare a suitable defense tomeet the charges raised, Defendant cannot have the best of two worlds. Having elected to let the case go to thejury, he cannot now complain after thejury has found him guilty. The judgment 

### is affirmed.

We Concur: 

### /