Hinkel v. Commonwealth

• Decision Date: 20 September 1923
• Citation: 119 S.E. 53
• Parties: HINKEL. v. COMMONWEALTH.
• Court: Virginia Supreme Court

119 S.E. 53

HINKEL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 20, 1923.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Battery.]

Error to Circuit Court, Smyth County.

J. R. Hinkel was convicted of simple assault, and he brings error. Affirmed.

John P. Buchanan and Geo. F. Cook, both of Marion, for plaintiff in error.

John R. Saunders, Atty. Gen., J. D. Hank, Jr., Asst. Atty. Gen., and Leon M. Bazile, 2d Asst. Atty. Gen., for the Commonwealth.

WEST, J. J. R. Hinkel was indicted for an attempt to rape, convicted of a simple assault, and sentenced to jail for one year and to pay a fine of $500.

Mary Thompson, the prosecutrix, a girl of 10 years, lived with her widowed mother over a store in the town of Marion, Va. During August, 1921, the accused met the girl at the store, and, with the promise of a gift, invited her to accompany him to the H. B. Staley Company's mill, about 300 yards away. After first securing her mother's permission, the girl went with Hinkel who took her to the third floor of the mill, where they were alone, and where the regrettable incident occurred.

Hinkel's account of what happened does not differ very materially from the testimony of the prosecutrix and is sufficient, in itself, to support the verdict. While he did not attempt to commit a criminal assault, his conduct, here purposely not delineated, clearly establishes his guilt of a simple assault.

The accused relies upon five assignments of error.

The fourth and fifth assignments relate to the action of the court in permitting Mrs. Lola Thompson, mother of the prosecutrix, to testify as to what her daughter told her when she came home from the mill, and in permitting W. A. George to testify.

There are no bills of exception pointing out the rulings complained of in these assignments. They are included in the general bill of exceptions, certifying all the evidence and noting the objections made and overruled and the exceptions taken.

While true that several exceptions may be saved in the same bill, to avoid confusion, each must set forth clearly and distinctly the grounds of objection relied on. The absence of this requirement in the instant case is conspicuous, and, there being no sufficient exceptions to the rulings of the court referred to in these assignments, this court will decline to consider them. N. & W. Ry. Co. v. Shott, 92 Va. 34, 22 S. E. 811; Kibler v. Commonwealth, 94 Va. 804, 26 S. E. 858; Myers v. Commonwealth, 132 Va. 757, 111 S. E. 463.

The sixth assignment is the conduct of the attorney for the commonwealth in using this language in his argument before the jury: "Now, if this were a colored man * * * " Before the attorney for the commonwealth could complete the...