At the April term, 1896, of the criminal court of Johnson county the defendant was convicted of robbery in the first degree and his punishment fixed at five years’ imprisonment in the penitentiary, under an indictment theretofore returned by the grand jury of said county against him, and one Charles Morse, for having at said county on the twelfth day of .November, 1895, robbed one S. S. Shoemaker of $40 or $45 in money, a watch valued at $30, and a railroad time check of the value of $25. From the judgment and sentence defendant appealed.
At the time of the robbery S. S. Shoemaker was a *106merchant at the town of Chilhowee, in Johnson county; and on the night of November 12, 1895, at about 10 o’clock, while on his way, in company with MeKinzey Gittings and Ben Rose, to the residence of Gittings’ father, a short distance in the country, to remain overnight, as they were passing through a gate in a hedge fence, they were assaulted by three persons who were secreted by the fence, and Shoemaker and Gittings covered by revolvers, in the hands of two of the robbers, while one of them went through the pockets of Shoemaker and Gittings, and robbed Shoemaker of $40 or $45 in money, a watch valued at $30, and a railroad time check of the value of $25. Shoemaker did not recognize either of the robbers, who were disguised, having their faces covered with handkerchiefs, although acquainted with both defendant and Morse, who lived in the town where he did business. One of the robbers whom Gittings recognized from his general appearance, voice and dress as the defendant, struck him over the head with a pistol.
There was evideuce upon behalf of defendant tending to establish an alibi, that is, that he was at home in Chilhowee, at the time of the robbery.
Defendant is not represented in this court.
In defendant’s motion for a new trial the first two causes assigned therefor are, that the court erred in admitting illegal and incompetent testimony on the part of the State, and in excluding legal and competent evidence offered on the part of the defendant. So far as this contention is concerned it does not seem to be borne out by the record; if so, it has escaped our observation after a careful examination of the same. It is therefore untenable.
Other assignments are that the court erred in giving instructions upon the part of the State from 1 to 7, both inclusive, in giving instructions of its own *107motion and in refusing instructions asked by defendant. The instructions given presented every phase of the case to the jury, in form often approved by this court, and free from objection.
As those given covered the case in all of its material features no error was committed in refusing instructions asked by defendant, although they may have been authorized by the evidence, and predicated upon the law governing the case. ■
There was ample evidence to justify the verdict. The indictment is in proper form. Finding no reversible error in the record the judgment is affirmed.
All concur.