Opinion
No. 33079.
May 30, 1938.
1. INDICTMENT AND INFORMATION.
In prosecution for trespass under statute, the state was not required to prove commission of offense on date alleged in affidavit, but could prove commission on any date within two years prior to finding of indictment (Code 1930, sections 1168, 1208).
2. TRESPASS.
Under statute defining the offense of trespass, the time of the commission of the trespass is not an element of the offense (Code 1930, section 1168).
3. CRIMINAL LAW.
In prosecution for trespass under statute, refusal of instruction which in effect would require the state to prove commission of offense on date alleged in affidavit was not reversible error (Code 1930, sections 1168, 1208).
APPEAL from the circuit court of Webster county; HON. JOHN F. ALLEN, Judge.
Patterson Patterson, of Calhoun City, for appellant.
The trespass is charged to have been committed on a certain day, to-wit, on May 22, 1937, and the proof shows that if any trespass was committed, it was committed a week or ten days after May 5th, which would be the 12th or 15th day of May. We, of course, recognize that Section 1208, Code of 1930, in most cases and offenses, would control as to the variance of the time of the alleged trespass and the testimony relative thereto, but in our opinion time is the essence of the offense, necessarily so because for an offense to be committed under Section 1168, it must have been done after notification not to do so, either personally or by publication or posted notice. And it must have been committed on enclosed lands in possession of the aggrieved party or on lands of the aggrieved party where the stock law is in force; therefore, this kind of offense cannot be shown to have been committed at any time within two years prior to the filing of the affidavit in this cause.
We think Mr. Chief Justice Sharkey settled this question in favor of appellant in the case of Payne v. Green, 10 S. M. 512, in dealing with this very kind of trespass, except the case cited was a civil suit. In that case this court said: "In each count, except the fourth, the trespasses are charged to have been committed on a certain day, and on divers other days between that and other day. The effect of so laying the trespasses in the declaration is to make the time a descriptive part of the trespass and to open the door for proof as to any trespass committed within that time, but to exclude all others."
The reason for the rule is apparent, the offense condemned by said Section 1168 being the charge of simply going upon the lands of another after being notified not do so, etc. If a complaining person is permitted to allege the trespass to have been committed on one day, and then after the defendant has brought many witnesses to the court, perhaps to show that he could not have possibly committed the alleged trespass on the date alleged, and then permit the same complaining party to show a going upon the land many days previous to the date alleged, would open the flood gates for many injustices to be done by a contentious or vindicative person.
Instruction No. 2 asked by the defendant and refused by the court should have been granted by the court below.
W.D. Conn, jr., Assistant Attorney-General, for the State.
Instruction No. 2, which was refused the defendant, undertook to require the jury to believe that the trespass was committed on a definite date. The affidavit charged the offense to have been committed on or about a certain date and the proof in the case showed that the offense was committed after notice and prior to the filing of the affidavit and within two years prior to the filing of the affidavit. Time is not of the essence of the offense of trespass and the trespass could have been shown to have been committed at any time prior to two years of the filing of the affidavit. In order to bring the offense within Section 1168 of the 1930 Code, it was necessary only to show that the offense occurred after notice and prior to the filing of the affidavit. Thus we say that it was proper for the court to refuse the instruction which bound the state to prove the offense as having been committed on a day certain.
The appellant, W.W. Card, was prosecuted for trespass under section 1168, Code of 1930, which reads as follows: "If any person shall go upon the inclosed land of another without his consent, after having been notified by such person or his agent not to do so, either personally or by published or posted notice, or shall remain on such land after a request by such person or his agent to depart, he shall, upon conviction, be fined not more than fifty dollars for such offense. The provisions of this section shall apply to land not inclosed where the stock-law is in force."
The prosecuting witness, Paxton, and the appellant owned adjoining land, divided by a fence. The lines had been run some twenty years ago, by an agreement between Paxton and the then owner of the adjoining tract, the line being established at that time where the fence now stands. Subsequently this land adjoining Paxton's place, on the opposite side of the fence, was acquired by Card, who, conceiving that the fence might not be on the correct line procured a surveyor to make a new survey, to which Paxton was not a party, and this survey ran a line some little distance inside the fence on Paxton's side.
Paxton testified that he notified Card not to go upon the land on his side of the fence — that he owned the land, and for twenty years the fence had been the line between the two tracts; and that all this time he had claimed the land which lay inside the fence on his side. He testified that he gave this notice not later than the 5th of May, 1937, and that subsequent to that time, and prior to the 22nd of May, the day the offense was alleged to have been committed in the affidavit, he saw Card go upon the land.
The state sought to prove that Card cut the fence and went upon the land claimed by Paxton, and cut timber therefrom; but the court excluded from the jury the evidence as to cutting the fence and timber, and limited the evidence to Card's going upon the land after notice by Paxton not to do so. Card testified that he did not receive notice not to go upon the land, but that he and Paxton discussed the matter, and that after such discussion he did not, in fact, go upon the land. The jury accepted Paxton's testimony, and returned a verdict of guilty, upon which Card was fined $50.00 and costs.
The appellant contends that the proof should have been limited to the 22nd day of May, and that time was the essence of the offense, and requested an instruction to this effect, which was refused.
Section 1208 of the Code provides: "An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue." This being true, evidence of the offense could be proven at any time within two years prior to the finding of the indictment. In no case is the time of the commission of the trespass under section 1168 of the Code an element of the offense. The section does not provide any time element, such as nighttime or daytime, or any descriptive matter that would make time an essence of the offense. Consequently there is no reversible error in refusing the instruction mentioned.
Affirmed.