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 Judicia 1 District, 

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. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment entered in the district 

court, Lincoln County, on a jury verdict finding the defendant 

guilty of grand larceny. 

Sometime during the weekend of August 17 to August 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. At the time of this break in the camp, 

located at Bunker Hill near Eureka, Montana, was closed due to 

fire conditions in the area. 

The break in was discovered on August 20, 1973, by the 

logging supervisor who had gone to the camp to be certain it 

was closed down properly. Investigation by the Lincoln County 

sheriff's department resulted in the filing of 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 

19th day of August, 1973." On December 6, 1974, defendant's 

counsel filed a 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. 

Trial held on this matter was commenced February 24, 1975. 

At conclusion of the state's case, the defendant's motion for a 

directed verdict dismissing the charge of burglary in the first 

degree was granted. Defendant also moved 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 time of the 
offense. This motion was denied. The state offered proof 

indicating the offense charged could have taken place anytime 

between the early evening, Friday, August 17, to noon Monday, 

August 20, 1973. 

At trial defendant's defense consisted mainly of testimony 

of several alibi witnesses for the period from the night of 

August 18, 1973 through 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 fair notice to defend with alibi witnesses for August 17 and 

18. This appeal is from the judgment 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, in pertinent 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 State ex rel. Borberg v. District Court, 125 Mont. 481, 

488, 489, 240 P.2d 854, this Court stated: 

"Perfection is not required in the pleading of a 

criminal cause * * * [and] is seldom attained * * *.I' 

The Court also stated in Borberg: 

"* * *the use of the phrase 'on or about' a certain 

day of a certain month in the year 1950 in charging 

such offense simply indicates that the time alleged 

was stated with approximate accuracy. State v. Terry, 

77 Mont. 297, 250 Pac. 612; State v. Thompson, 10 Mont. 

549, 27 Pac. 349." 
The- use of approximate date language should have served to 

put the defendant on notice the state intended to prove the crime 

was committed within a reasonable period of time prior to or 

subsequent to the date on the Information. The location of the 

break in and the difficulty in determining 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 to rely on a defense of alibi as required by 

section 95-1803(d), R.C.M. 1947, gives the state notice time 

may become an essential fact of the proof required to convict the 

accused. Assertion of the alibi defense does not change the nature 

of the crime charged here. Defendant should have rea.lized the 

state would present evidence proving the crime took place sometime 

in the period between shutdown of the camp and discovery of the 

break in. Defendant cannot restrict the state's case by merely 

asserting intent to rely on an alibi defense for a limited period 

of time within which the crime could have occurred. 

Further, in requesting a new trial, defendant failed to seek 

the proper relief if he wished to protect himself from any 

prejudice allegedly incurred by use of an approximate date in the 

charging Information and the proof offered at trial. The action 

suggested in State v. Rogers, 31 Mont. 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 alibi as 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 sQbject for review on appeal." 

(Emphasis added.) 
Section 95-1803(d), R.C.M. 1947, provides in pertinent part: 

" * * After the trial commences, 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 alibi defense was not enacted 

until 1967, it provides for a modification of the witness list 

upon a showing of good cause by the defendant, and protects him 

from the type of prejudice alleged to have occurred here. If defendant felt his defense of alibi was jeopardized at the close of 

the state's case, his proper course would be to seek a continuance 

to have time to prepare a suitable defense to meet the charges 

raised, Defendant cannot have the best of two worlds. Having 

elected to let the case go to the jury, he cannot now complain 

after the jury has found him guilty. 

The judgment is affirmed. 

We Concur: /