Opinion
Dec. 29, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 721
Haas & Watts, Al H. Haas, Durango, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an appeal from a delinquency proceeding initiated under 1967 Perm.Supp., C.R.S.1963, 22--3--1 et seq.
The appellant, a 14 year old child, was charged as a delinquent by petition dated June 3, 1969. The acts of delinquency were set forth in two counts. The first count charged him with the burglary of a residence in Durango, Colorado, 'on or about the 21st day of March, 1969.' The second count alleged that on the same date he did 'unlawfully obtain and exert unauthorized control over a camera and liquor of the value of $49.95, * * * the property of * * *, and intending to deprive permanently the owner * * * of the use of said goods, in violation of 1963 C.R.S. 40--5--2, as amended.'
The appellant, by counsel, denied the allegations of delinquency and trial was had to the court on August 5, 1969. In their case in chief, the People called the owner of the premises and two alleged accomplices who admitted their participation in the burglary.
With regard to the time the alleged burglary was to have occurred, the owner testified that she was absent from the premises for 7 or 8 days during the latter part of March 1969 and that the house had been entered without her permission during her absence. The first alleged accomplice testified that he did not recall the date of the burglary but positively stated that it occurred on Saturday night at about 8:30 p.m. The second alleged accomplice testified that he also could not recall the date in question, but that the burglary took place on a Friday or Saturday evening in the month of March.
After the People rested their case, the defense made a motion to dismiss based on the People's failure to prove, Inter alia, the exact date of the alleged crime. The trial court denied this motion, relying on the testimony of the alleged accomplices which was strong and thus far uncontroverted.
In his defense, the appellant presented an alibi for the evening of Friday, March 21, 1969. He alleged that on that evening he attended a movie with some friends. This alibi was corroborated by the testimony of the appellant's mother and father as well as by three of his friends who allegedly accompanied him to the theatre. The appellant also presented an alibi for the evening of Saturday, March 22, 1969. He alleged that on that evening he was at home with a friend who stayed overnight. This story was corroborated by his mother. However, his father testified that appellant was home on Saturday night, but that no one stayed overnight with him. The friend who supposedly stayed overnight was not called as a witness in this proceeding.
On August 12, 1969, the trial court sentenced the appellant stating:
'The court, of course, is convinced that you were with them. The testimony of three friends of yours who had no reason to implicate you other than you were there convinced the Court you were there. Perhaps not on the date that was alleged, but in the area of the time of that date the Court is convinced you were there. The Court finds it entirely too remarkable that all the things that these witnesses have testified to implicating other people, as well as implicating you, have been proven true. And of the other persons who were involved in their testimony all of them have admitted their implication, except you, and the Court finds no reason to feel that their testimony would be true in all these other instances and not in your case. The Court has seen no reason why your friends who were involved in this thing, admitted friends of yours, should implicate you if you were not there. This is the reason the Court is convinced that you were implicated. Now that the Court is convinced that you were implicated, the Court is concerned over your persistent denial of what appears to be an obvious fact.'
I
The appellant alleges as error the trial court's denial of his motion to dismiss made at the conclusion of the People's case for the reason that 'the People had failed to prove the alleged date of the offense with any degree of certainty thereby making it impossible to interpose a defense of alibi.' We find no Colorado cases supporting the appellant's contention. It is well settled in Colorado that the date of the offense is an immaterial allegation, proof of commission of the offense at any time during the statute of limitation being sufficient. Peters v. People, 151 Colo. 35, 376 P.2d 170.
The appellant relies on People v. McCullough, 38 Cal.App.2d 387, 101 P.2d 531, to support his contention. However, that case suggests that where there is an abundance of evidence to establish the commission of the crime, it is unnecessary to establish the exact date, even where the defense produces alibi testimony. This proposition was later expressly affirmed by the same court in People v. Ridout, 154 Cal.App.2d 669, 316 P.2d 396. In the case at hand, the trial court heard the testimony of two alleged accomplices who said that the appellant took part in the offense. This evidence was quite strong thereby making it unnecessary for the date of commission to be alleged with specificity.
It is further noted that upon making such motion, the appellant made no mention of his intention to defend on an alibi theory.
II
The appellant next alleges that 'the trial court erred in finding the child delinquent on the uncorroborated evidence of the testimony of the alleged accomplices.' We find no merit in this contention. The testimony of the accomplices was entirely congruous as to the question of whether or not the act was committed and who took part therein.
The appellant admits the law of Colorado to be as stated in Bradley v. People, 157 Colo. 530, 403 P.2d 876, and quotes the following from it:
'The well settled law in this state is that the testimony of an accomplice need not be corroborated if, standing alone, it is sufficiently clear and convincing to establish guilt beyond a reasonable doubt.'
The appellant's argument is that the testimony of the accomplices in the case at hand did not meet the test of being clear and convincing, and did not establish the guilt beyond a reasonable doubt. The trial court found otherwise and there is ample evidence in the record to support this finding. However, even if their testimony was not such, hence requiring corroboration, it is established that the testimony of one accomplice can be corroborated by that of another accomplice. McClenny v. People, 155 Colo. 202, 393 P.2d 736.
III
The appellant also argues that the trial court erred in finding him delinquent despite testimony supporting his alibi for the evening of March 21. Alibi testimony creates a question of fact, the resolution of which is a matter solely for the trier of fact. McClenny v. People, Supra. Thus, the trial court could have believed that the offense took place on Friday, but chose not to believe the alibi. Further, in Albritton v. People, 157 Colo. 518, 403 P.2d 772, the Supreme Court held that events which took place on one date could have been shown to establish the commission of a burglary even though the information erroneously alleged that it occurred on another date. Thus, the trial court, in the case at hand, could have believed that the events took place on Saturday night and not believed the alibi presented by the appellant for that night. The evidence shows that the alibi presented by the appellant as to his whereabouts on Saturday night was by no means convincing.
IV
Finally, the appellant claims the trial court erred in allowing the People to call the third alleged accomplice in rebuttal. He claims that Hardesty v. People, 52 Colo. 450, 121 P. 1023, holds that someone who allegedly participated in the crime and could testify as to matters thereto cannot be held back by the prosecution for rebuttal. While this is a correct statement of the law, it cannot be taken out of context of the Hardesty case. The prosecution there in its case in chief presented only circumstantial evidence. On rebuttal, however, the prosecution brought on two new witnesses, one of which was an accomplice and another an eye witness, both of whom testified as to the commission of the crime. Such was not the case here. The People presented the testimony of two accomplices in their case in chief. The testimony of the third accomplice in the rebuttal did not take the defense by surprise as in Hardesty, supra. Such testimony merely refuted the appellant's denial and further corroborated the testimony already given by the other two accomplices.
The judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.