Dorsey v. State
| Decision Date | 31 March 1923 |
| Docket Number | Criminal 546 |
| Citation | 25 Ariz. 139,213 P. 1011 |
| Parties | D. T. DORSEY, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Reversed and remanded.
Mr. J J. Cox, for Appellant.
Mr. W J. Galbraith, Attorney General, and Mr. R. E. L. Shepherd County Attorney, for the State.
McALISTER, C. J. D.
T Dorsey, H. E. Briley and Tom Hatton were jointly accused by information of the crime of robbery, and appellant, Dorsey, in a separate trial, was convicted and given an indeterminate sentence in the state prison of not less than five nor more than six years. He appeals from this judgment and the denial of his motion for a new trial.
On January 17, 1922, about 11 o'clock at night, while riding along Thomas Road about 100 feet west of Central Avenue, just north of the city of Phoenix, R. J. McAndrews was overtaken by an automobile in which three men were riding, and, as its occupants seemingly wanted to pass, he turned to one side to permit them to do so, but when they came about even with him one of them pointed a revolver at him and ordered him to throw up his hands. He complied, and he and the lady with him were directed to get out of their car and stand about ten feet back of it, where he was searched by one of the three and $2.50 in money taken from his person. They then took a 45-caliber Colt's revolver from his car, disconnected the wires from his spark plugs, and rode away. A few days afterwards the premises of appellant on East Lincoln Street, Phoenix, were searched, and the Overland car in which the three men were riding at the time of the robbery found in his garage. The revolver belonging to McAndrews and taken from his car by them was also found in one room of appellant's house, though this particular room was leased to, and occupied by, appellant's co-defendants, Briley and Hatton. McAndrews was unable to identify any one of the three as having participated in the holdup, though he testified that Hatton resembled both in appearance and voice the one who held the revolver on him and directed the robbery, but he was positive in his identification of the car. He was not present at the trial, but a transcript of his testimony at the preliminary hearing, and the reporter's notes of that given at the separate trial of Hatton, were read to the jury.
Under this state of facts the revolver was offered in evidence by the county attorney and its admission objected to by appellant, upon the ground that there was no testimony showing that it had ever been in his possession, under his control, or in any way connected with him, but the objection was overruled and the gun admitted, after the prosecuting attorney had stated that he had a man who would positively identify Dorsey as one who had held him up in point of time close to this, the court remarking that "it was admissible as having been found in a certain place."
W. T. Smith was then placed on the stand and asked concerning a robbery of himself two nights previously, and appellant objected to the question as immaterial and irrelevant, but the court stated that it was admissible for the purpose of identification; that is, we take it, to identify appellant as one of the three who robbed McAndrews on the night of January 17th. Smith then testified that he was held up by three men in an automobile on January 15, 1922, near the same place and about the same hour as McAndrews -- 10:30 or 11 o'clock at night. He identified appellant as the driver of the car but the other two were masked and not recognizable, though their general appearance and size led him to believe them appellant's codefendants, Hatton and Briley. He also identified the Overland car found on appellant's premises the day of the search as the one in which the three men were riding when they held him up.
The admission of the gun and the testimony of Smith is the principal error assigned. The propriety of the ruling admitting the gun, however, which was prompted largely by the avowal that Smith would testify as he did, rests upon the correctness of the court's action in permitting evidence of the robbery of another person by appellant two days before the commission of the offense charged. The fact that the gun was in appellant's house soon after the robbery did not under the circumstances, show possession in him, since it was found in the room leased to and occupied by Hatton and Briley who were in possession of the property in this room not belonging to the owner of the house, and who, because of this possession,...
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State v. Greenawalt
...He urges that the applicable rule regarding admissibility of separate and distinct crimes is stated in Dorsey v. State, 25 Ariz. 139, 143, 213 P. 1011, 1012 (1923): "The general rule is that, in the prosecution of one accused of a particular offense, evidence showing or tending to show the ......
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State v. Petralia, 2609
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