State v. Drapeau

• Decision Date: 27 June 1922
• Docket Number: 5035
• Citation: 45 S.D. 507,189 N.W. 305
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. RAYMOND DRAPEAU, Defendant and Appellant.
• Court: South Dakota Supreme Court

45 S.D. 507

189 N.W. 305

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

RAYMOND DRAPEAU, Defendant and Appellant. South Dakota Supreme Court Appeal from Circuit Court, Yankton County, SD Hon. Robert B. Tripp, Judge #5035--Affirmed Caster & Cassidy, H. A. Doyle Attorneys for Appellant. Howard Warren, State's Attorney Byron S. Payne, Attorney General Attorneys for Respondent. Opinion filed June 27, 1922

SMITH, J.

Appellant was convicted of the robbery of one Henry Buckhart, and appeals from the judgment and an order overruling his motion for a new trial. He pleaded not guilty, and claimed an alibi. It appears that one Mason had been charged with participating in the same robbery, had pleaded guilty, and had been sentenced to the penitentiary, whence he was returned upon order of the trial court to testify against appellant. His testimony, given with great reluctance, was, in substance, that Drapeau lived in Yankton, at the south end of Pearl street, next to the river; that on the night of the robbery, about 6:30, he and Drapeau went up to Buckhart's residence together; that the day before they had both been at Buckhart's house and had met a woman from Sioux City, who had exhibited a considerable sum of money; that when they went to Buckhart's on the evening of the 31st their purpose was to induce this woman to leave the house with another woman, who was aiding them, and thus give them an opportunity to take her money; that the woman refused to leave the house; that a porch or platform ran along the west side of the house and around on the south side, where the door was; that Mason went around on this platform from the west side to the south side of the house, and saw Buckhart sweeping snow off the walk, and called to him to put up his hands, which he did when covered with the gun; that Drapeau searched him and took his pocketbook; that he and Drapeau then ran away, and met at defendant's house, where they divided the money.

One Rudolph Magara, a witness for the state, on direct examination testified that he saw George Mason and Raymond Drapeau at the corner of the Dakota National Bank on Sunday night just before the robbery; that he had a conversation with Mason and Drapeau there that evening; that Mason wanted to borrow a gun from him, and asked him to go with them; that Mason did the talking; that Drapeau did not say anything; that Mason said they wanted to go down by the river bank and rob a woman of $200 that she had; that afterward, about February 21st, he talked with Drapeau near Mooney's pool hall; that Drapeau was cussing Whitey (meaning George Mason) "for telling"; that there were three or four there, and after the bunch started to leave Drapeau told the witness to "keep still." On cross-examination this witness made certain statements inconsistent with some of his testimony on direct examination.

One Enoch Hough testified that he was clerk at the Merchants' Hotel in Yankton; that a little before the time of the robbery Mason and Drapeau came to the hotel together; that Drapeau remained outside, and that Mason came in and wanted to borrow a gun.

One Fred Jones testified that on the evening previous to the robbery he saw Mason at Mooney's pool hall; that Mason wanted to borrow a gun, saying he wanted to kill a dog; that he told Mason he had no gun himself, but that his brother-in-law, Harry Arend, had one; that they went together to find Arend; and that Arend loaned Mason a gun, being the one identified as an exhibit in evidence.

Harry Arend testified that he saw Mason by the library about 4 o'clock in the afternoon of the day of the robbery, and loaned him the gun; that Mason brought the gun back the next morning; that Drapeau was not with Mason when he borrowed the gun.

The wife of accused, as a witness for defendant, testified that Mason came to their home about 6 o'clock' on the evening of the 31st day of January, the evening that the robbery took place; that he called for her husband, and showed her husband something which she thought was a gun; that her husband asked him, "Where did you get it?" and he said, "From Harry Arend."

Henry Buckhart testified to what occurred at the time of the robbery substantially the same as Mason, but stated that both men were masked, and he could not and did not recognize either of them, but stated that the man holding the gun on him said to the other man, "Get him Ray," and the other man came from the corner of the house and searched his pockets, taking a purse containing $9 or $10 in money; that it was between 8 :30 and 9 o'clock in the evening.

Other evidence, tending to prove an alibi, is immaterial on the question of insufficient corroboration relied upon by appellant.

At the close of all the evidence, defendant's counsel moved the court to advise the jury to return a verdict of acquittal on the ground that there was no evidence sufficient in law to corroborate the testimony of Mason, who was an accomplice in the crime charged. The denial of this motion is assigned as error.

It is the settled law of this jurisdiction that reversible error cannot be predicated upon the refusal of a trial court to advise an acquittal. State v. Stone, 137 N.W. 606; State v. Guffey, 163...