State v. McDonald
| Decision Date | 30 April 1885 |
| Citation | 85 Mo. 539 |
| Parties | THE STATE v. MCDONALD, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court.--HON. W. W. EDWARDS, Judge.
AFFIRMED.
The defendant was jointly charged with several others, in the circuit court of St. Louis county, with robbery in the first degree, upon the following indictment:
“The grand jurors of the state of Missouri now here in court duly empaneled, sworn, and charged to inquire within and for the body of the county of St. Louis, and state of Missouri, upon their oaths, present and charge that Wm. Dwyer, Richard Gleason, Patrick Dalton, Robert McDonald, Peter Welsh, and Joseph Montgomery, on the thirtieth day of May, A. D., one thousand eight hundred and eighty-four, at the county of St. Louis, in the state of Missouri, in and upon one Anton Dam then and there being, unlawfully and feloniously did make an assault; and two dollars and fifty cents of the money and property of the said Anton Dam from the person, and against the will of the said Anton Dam, then and there by force and violence to the person of the said Anton Dam, feloniously did rob, steal, take, and carry away, against the peace and dignity of the state.
And the grand jurors aforesaid, upon their oath aforesaid, further present and charge, that the said William Dwyer, Richard Gleason, Patrick Dalton, Robert McDonald, Peter Welsh, and Joseph Montgomery, on the thirtieth day of May, 1884, at the said county of St. Louis and state aforesaid, in and upon one Mina Dam, then and there being, unlawfully and feloniously, did make an assault, and one ear-ring of the value of fifty cents, of the goods and chattels and personal property of the said Mina Dam, from the person and against the will of the said Mina Dam, then and there by force and violence to the person of the said Mina Dam, feloniously did steal, take, and carry away, against the peace and dignity of the state.
And the grand jurors aforesaid, upon their oath aforesaid, do further present and charge, that the said William Dwyer, Richard Gleason, Patrick Dalton, Robert McDonald, Peter Welsh, and Joseph Montgomery, on the thirtieth day of May, 1884, at the county of St. Louis, in the state of Missouri, in and upon Anton Dam and Mina Dam, then and there being, unlawfully and feloniously, did make an assault, and two dollars and fifty cents in money, of the value of two dollars and fifty cents, of the money and personal property of the said Anton Dam, then and there by force and violence to the person of the said Anton Dam, feloniously did rob, steal, take, and carry away, and one ear-ring of the value of fifty cents of the goods, chattels, and personal property of the said Mina Dam, from the person and against the will of the said Mina Dam, feloniously did rob, steal, take, and carry away, against the peace and dignity of the state.”
A severance was granted defendant, and, upon trial, he was convicted and sentenced to ten years' imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest of judgment, he appealed to this court.
Zach. J. Mitchell for appellant.
(1) The court erred in failing of its own motion to instruct as to an alibi, in favor of defendant. State v. Branstetter, 65 Mo. 155; State v. Lewis, 69 Mo. 92. An alibi is an ordinary defence and should be instructed upon. 1 Bish. on Crim. Proc., secs. 1062, 1064, 1065, 1066, 1067; Commonwealth v. Choate, 105 Mass. 459; Howard v. State, 50 Ind. 190; State v. Hardin, 46 Iowa 623; State v. Walker, 42 Tex. 360; Briceland v. Commonwealth, 24 Pa. St. 462. (2) Instruction number one is erroneous and confusing. State v. Davidson, 38 Mo. 378. (3) The court erred in instructing for a general finding upon the three counts in the indictment. (4) There was no evidence to support a general verdict as found. (5) There was no evidence to support any verdict as against defendant.
B. G. Boone, Attorney General, for the state.
(1) The action of the court, in the progress of the trial, was proper. Defendant saved no exception to the admission or the rejection of evidence, the sustaining or overruling of any motion, or the giving or refusing of any instruction; these matters constitute no part of the record proper, and will not be reviewed by this court. State v. Pints, 64 Mo. 317; State v. Williams, 77 Mo. 310. (2) Although there were several counts in the indictment, but one offence was charged, and the court properly instructed the jury that a general finding would be sufficient. State v. Miller, 67 Mo. 604. (3) The evidence was sufficient to justify the instructions given, and the verdict was responsive...
To continue reading
Request your trial
-
State v. Dougherty
...form and is responsive to the issues in the case. Secs. 8401(f), 8404(c) R.S. 1939; State v. Link, 315 Mo. 192, 286 S.W. 12; State v. McDonald, 85 Mo. 539; State v. Librach, 270 S.W. 284; State v. Mitts, 315 Mo. 1320, 289 S.W. 935; State v. Bray, 246 S.W. 921. (2) The court did not err in r......
-
State v. Anderson
...to them in the motion for a new trial. State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 318; State v. Williams, 77 Mo. 310; State v. McDonald, 85 Mo. 539. When it clearly appears that other instructions than those preserved were given, the presumption is, that the court properly instructed ......
-
The State v. Goddard
...Timely objection and exception must be taken in order to avail the party in this court. [State v. Hope, 100 Mo. 347, 13 S.W. 490; State v. McDonald, 85 Mo. 539.] this can not be held to be reversible error in this case for another reason. Defendant in the examination of Maud Jackson brought......
-
State v. Dougherty
...the form the proof may take a general verdict is sufficient without any designation of the count upon which it is rendered. State v. McDonald, 85 Mo. 539, 543; State v. Schmidt, 137 Mo. 266, 270, 38 S.W. State v. Noland, 111 Mo. 473, 501, 19 S.W. 715; State v. Librach, (Mo. Sup.) 270 S.W. 2......