243 Mo. 592 | Mo. | 1912
Conviction upon an information charging defendant, together with Otto Roussin and Louis Robare, with robbery in the first degree, committed upon one Erwin Dose. Defendant was tried separately, and his punishment fixed at five years in the penitentiary.
The evidence for the State tended to prove that on Sunday, at half past twelve, a. m., on May 8, 1910, said Dose met defendants Dockery and Roussin op North Grand avenue and Market street, in St. Louis. They were waiting for a Grand avenue car. Dose was under the influence of liquor. The three went to the Social Economic Club, where they met the other codefendant, Robare. This club was located in the downtown section of the city. At the club some beer was ordered, the three defendants and Dose drinking same. They remained some time at the club, drinking beer and entertaining and amusing themselves in different ways. At the suggestion of some one of the party they went out upon the street. Upon reaching an alley, defendant Dockery suggested that they go into the alley and urinate. They entered the alley to a distance of fifty feet, defendant leading the way,
The defendant’s testimony corroborated that for the State as to the happenings preceding the assault and robbery. He testified that Dose proposed going into the alley, and that Dose and the others preceded him (defendant) into the alley, he lagging behind be
James Dockery, defendant’s father, testified that he was a member of the metropolitan police force, and was then a sergeant; that his son, the defendant, had always been industrious and had never been convicted of any offense; that he kept regular hours, and never gave him any trouble; that on the night in question defendant gave him twenty-five dollars, stating that he was going out to Forest Park Highlands and was afraid that he might lose the money.
Defendant introduced evidence tending to prove that his general reputation for industry and honesty was good.
The defendant contends in his brief that the following instructions given by the court- misdirected the jury:
“1. All persons who act together with a common intent in the commission of a crime are equally guilty. If you find and believe from the evidence, beyond a reasonable doubt, that at the city of St. Louis and State of Missouri, on or about the 8th day of May, 1910, Otto Roussin, Louis Robare and James Dockery did assault the prosecuting witness, Erwin Dose, by grasping and holding his arms and choking him, and
“2. It is not necessary for the State to show that the defendant, James Dockery, himself actually assaulted the prosecuting witness, Erwin Dose, or that defendant actually took from him any part of the money mentioned in the information, but you will be authorized in finding the defendant guilty of the offense charged if you find, beyond a reasonable doubt, either:
‘£ 1st, that he assaulted the prosecuting witness, Erwin Dose, and by violence to' his person or by putting him in fear of some immediate injury to his person, took the money mentioned in the information, or some, part thereof, from his person; or,
££2d, if the defendant was present and aided and assisted Otto Roussin -and Louis Robare, or either of them, in assaulting said Erwin Dose and taking his property from his person, against his will; or,
££3d, if he was present for the purpose of aiding, abetting or assisting said Otto Roussin and Louis Robare, if necessary, in such assault and in taking such property from the person of said Erwin Dose against his will.”
I. It is urged that the first instruction is faulty in that it assumes that there was evidence of a common intent among the three parties charged with the crime. The record contains ample evidence to support this instruction. There was evidence that defendant led the way into the alley, and that he suggested going there. There was slight evidence that he actually participated in the holdup. Dose testifies that Robare had hold of his arms, and that either defendant or Boussin (he could not swear which) took his money; but he did testify that the two men who had hold of him ran off together. Robare and defendant ran off together, according to the testimony of officer Archie. There is also the testimony of defendant’s subsequent denial of his presence in the alley, and his equivocal reply to the officer when asked about the shot fired by the latter. According to his own evidence he was only ten feet away from the struggle. The cases cited on this point- — State v. Valle, 164 Mo. 551, and State v. Meyers, 174 Mo. 352 — do not help defendant.
II. As to the second instruction, it is urged that paragraphs 2 and 3 assume that Boussin and Bobare assaulted Dose and took his money. The brief merely states this proposition, without argument or citation. We find no merit in the point. The instruction as a whole tells the jury to convict if they find under the facts one of the three alternatives, viz: Whether defendant himself assaulted Dose; whether he was present, aiding and assisting Boussin and Bobare, or either of them; whether he was present for the purpose of so assisting if necessary. It canot be said that this instruction relieved the jury from the duty of finding all the essential facts.
Other than as set out above the defendant does not complain. We have examined the entire record, and find no reversible error therein. The judgment is affirmed.