State v. Parmenter

• Decision Date: 08 June 1922
• Docket Number: No. 23389.,23389.
• Citation: 242 S.W. 897
• Parties: STATE v. PARMENTER.
• Court: Missouri Supreme Court

242 S.W. 897

STATE v. PARMENTER.

No. 23389.

Supreme Court of Missouri, Division No. 2.

June 8, 1922.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

James Parmenter was convicted of assault with intent to commit rape, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.

DAVID E. BLAIR, J.

Convicted of the crime of assault with intent to rape, wherein his punishment was fixed at a fine of $500 and imprisonment in the county jail for a term of six months, the defendant has appealed.

The testimony on the part of the state tended to show the following facts: One William Hobbs and his wife, Ethel Hobbs, and one small child were living on a farm near Norwood, Wright county. Mrs. Hobbs, the prosecuting witness, was 17 years of age. On the morning of Wednesday, February 5, 1919, she was left alone with her baby in their small two-room house, while her husband drove to Norwood. William Hobbs met the defendant about four miles out of Norwood. About 1 o'clock in the afternoon of that day the defendant came to the Hobbs house, opened the door, and walked in and approached Mrs. Hobbs, and stated that he was going to kiss her, and thereafter followed her and grabbed her by the wrist and forced her into the bedroom and upon the bed, stating that he was going to rape her. She testified that they scuffled for about an hour on the bed and around the room, and that her dress and petticoat were torn, and she was bruised on her arms, wrists, and body. She also testified that defendant said he would kill her if she did not do what he said for her to do, and that she "screamed and hollered." She finally pretended she heard her husband coming, and the defendant became alarmed and left the house. There was no other house in close proximity. William Hobbs came home about sundown, and found her nervous and bearing evidence of having been crying, with her aim and wrist bruised and swollen, and she then related to him the facts above detailed.

The evidence on the part of the defendant tended to show that on Saturday, Sunday, Monday, Tuesday, and the forenoon of Wednesday, the 5th of February, the day this alleged assault occured, the defendant was suffering from an on-coming attack of the "flu," which was then epidemic in the vicinity. He did some work during all that time, and on the morning of Wednesday the 5th endeavored to cut some sprouts, and concluded that he would have to hire some one to do the work for him, and about 2 o'clock in the afternoon left his father's home, where he resided, to go to the Hobbs house to endeavor to employ William Hobbs to do the work. He testified that he was only there a few minutes, and did not go inside the house, but stood in the doorway and talked to Mrs. Hobbs. While he was there she asked him for some money to get some shoes for the baby, and he refused to give her money. About Christmas time preceding he had given her a small amount of money. The prosecuting witness denied asking the defendant for money, but testified that when she threatened to tell her husband about his conduct he threw down $1.50 on the floor and left. The defendant denied absolutely laying his hands upon the prosecuting witness in any wise whatever. There was a scarp conflict between Mrs. Hobbs' testimony and the testimony of the witnesses on the part of the defendant as to the time the defendant went to the Hobbs house, but this is unimportant, in view of the fact that the defendant admitted that he was there. The only substantial conflict lies in the length of his stay and what occurred while he was there.

William Parmenter, a brother of the defendant, was a witness upon his brother's behalf, and on cross-examination admitted that he had gone to the Hobbs home and offered to pay $40 if the prosecution was dropped. He testified that defendant knew nothing of this offer. A number of witnesses testified for defendant as to his physical condition, most of whom described it as "poorly." However, it appears from the evidence that he worked Friday, Saturday, Sunday, Monday, and Tuesday at such heavy work as hauling feed, butchering hogs, cutting sprouts, etc.

In rebuttal the state introduced a number of witnesses, who testified that the reputation of the defendant for truth and veracity and morality was bad, and some of the witnesses testified similarly concerning the reputation of his brother William Parmenter.

The appellant has filed a complete transcript of the record, but has not favored us with any brief. The motion for a new trial charges error against the trial court in respect to the admission of incompetent, irrelevant, and immaterial evidence offered by the state, and the exclusion of competent, material and relevant evidence offered by the defendant; error in each and all of the six instructions given by the court, and refusal of the court to give instruction A, asked for by the defendant; and, finally, that the court erred in modifying an instruction after the conclusion of the argument and after defendant's counsel had concluded the argument, and had no opportunity to argue the facts as applied to said instruction. Tho bill of exceptions calls for a motion in arrest, which the record shows was overruled. Said motion does not appear anywhere in the record, and we are unable to determine what were the grounds of said motion.

I. The first and second grounds stated in the motion for new trial relate to the admission of incompetent, irrelevant, and immaterial evidence on the part of the state and the refusal of competent, relevant, and material evidence offered by the defendant. The learned Attorney General contends that the grounds stated are too general, and that the particular testimony complained of should be pointed out in the motion for new trial. This court has so held in a number of cases, including State v. Brown, 168 Mo. 449, 68 S. W. 568, and other cases cited in the brief of counsel. But no good reason exists why any distinction should be made between civil and criminal cases with respect to the particularity and definiteness in this regard required in the motion for new trial. A general specification is sufficient. If, at the time the testimony was offered by the state, defendant's objection was sufficiently specific and his exception duly saved, or if exception was saved at the time to the erroneous exclusion of testimony properly offered by him, a general assignment of error in the motion for new trial is sufficient to require us to review the assignment. State v. Noland, 111 Mo. 473, loc. cit. 492, 19 S. W. 715; State v. Barrington, 198 Mo. 23, loc. cit. 76 (en banc) 95 S. W. 235; State v. Smith (Mo. Sup.) 237 S. W. 483. See, also, the separate concurring opinion of the writer in State v. Ellis (Mo. Sup.) 234 S. W. 845, loc. cit. 849, in...