State v. Dockery

• Decision Date: 01 June 1912
• Citation: 147 S.W. 976
• Parties: STATE v. DOCKERY.
• Court: Missouri Supreme Court

147 S.W. 976

STATE v. DOCKERY.

Supreme Court of Missouri, Division No. 2.

June 1, 1912.

1. CRIMINAL LAW (§ 761)—TRIAL—INSTRUCTIONS.

In a prosecution for robbery, evidence that defendant led the way into an alley where the robbery occurred, and that he suggested going there with the other participants, was sufficient to authorize an instruction assuming that there was a common intent among the three defendants charged with the offense.

2. CRIMINAL LAW (§ 761)—TRIAL—INSTRUCTIONS —ASSUMED FACTS.

Where, in a prosecution for robbery, an instruction charged the jury to convict if they found from the facts one of three alternatives, to wit, that defendant himself assaulted prosecutor, whether he was present, aiding and assisting his two codefendants or either of them, or whether he was present for the purpose of so assisting, if necessary, such instruction was not objectionable as relieving the jury from the duty of finding all the essential facts, nor as assuming that the codefendants assaulted prosecutor, and took away his money.

3. CRIMINAL LAW (§ 824)—TRIAL—INSTRUCTIONS —ALIBI—NECESSITY OF REQUEST.

It was not error to omit to instruct on alibi, in the absence of request therefor.

4. CRIMINAL LAW (§ 954)—NEW TRIAL—APPLICATION —STATEMENT OF GROUNDS.

An application for a new trial "because the court failed to instruct the jury on the entire law applicable to the case" was too general for failure to call the court's attention to the particular point omitted.

Appeal from St. Louis Circuit Court, Hugo Grimm, Judge.

James Dockery was convicted of robbery in the first degree, and he appeals. Affirmed.

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 12 a. m., on May 8, 1910, said Dose met defendants Dockery and Roussin on 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 50 feet, defendant leading the way, when Dose stopped for the purpose mentioned. Robare threw his arms around Dose, while one of the others (Dose could not tell which) proceeded to choke him with one hand, and go through his pockets with the other, and robbed him of $10. This party asked him if he had any more money, and Dose said, "No." They then turned Dose loose, who ran and hallooed, "Help, help, police! They have robbed me." The two men who held Dose ran in a direction opposite to that taken by him. The money taken was mostly silver. There was one $2 bill. Roussin ran down the alley in the same direction taken by Dose. Police Officer Archie, at 2:15 that Sunday morning, at Ninth and Chestnut streets, saw defendant and Robare running at full speed, side by side, up the street, and at the same time saw Roussin scuffling with Dose down the street. The officer fired a shot at defendant and Robare, but did not stop them. Archie arrested Roussin after firing a shot at him. Later, the same morning, Robare and defendant were arrested, the latter at his home. Defendant denied having been down town that night. Archie said, "Didn't you run when I shot at you?" To this Dockery replied: "No; you are crazy. I didn't hear any shot." At the police station the three men, in the presence of Dose and several police officers, began accusing one another of the robbery. Dockery said that Robare and Roussin took the money, while Roussin maintained that the other two took it. All were searched. Two dollars and fifty cents was found on Dockery's person, and about the same amount on Roussin. Robare's pockets contained $1.50 and three keys, which keys were identified by Dose as his property.

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 because of a sore heel; that he stopped at the entrance, the others going into the alley about 10 feet; that he saw Robare and Roussin assault Dose, but thought it was simply a quarrel; that one of them said, "Go to hell," and then the three ran away, leaving him behind; that, thinking it was their intention to get rid of him, he walked over to Seventh street and Franklin avenue, boarded a street car, and went home. He acknowledged that he told the police officers, when they came to arrest him, that he knew nothing about the affair, but denied that he made any statements at the police station inculpating the others or indicating his own...