State v. Parrish

• Decision Date: 11 October 1948
• Docket Number: No. 40916.,40916.
• Citation: 214 S.W.2d 558
• Parties: STATE v. PARRISH.
• Court: Missouri Supreme Court

214 S.W.2d 558

STATE v. PARRISH.

No. 40916.

Supreme Court of Missouri, Division No. 1.

October 11, 1948.

Appeal from St. Louis Circuit Court, Division No. 12; William H. Killoren, Judge.

Edward Parrish was convicted of assault with intent to kill without malice aforethought, and he appeals.

Judgment affirmed.

Emanuel Williams, of St. Louis, for appellant.

J. E. Taylor, Atty. Gen., and John R. Baty, Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant was charged with the crime of assault with intent to kill with malice aforethought. A jury returned a verdict of guilty of assault with intent to kill "without malice aforethought" and assessed "punishment at: 5 years." Thereafter and after allocation the trial court pronounced judgment and sentence that defendant be confined in the "Penitentiary of the State of Missouri" for the period of five years. Defendant has appealed.

The events giving rise to the charge and conviction occurred March 15, 1946. Defendant lived in a rooming house on Cook Avenue in St. Louis. One Sullivan Green and a woman, America Green, occupied two rooms adjacent to defendant's quarters.

America, witness for the State, testified she and Sullivan were in bed about 9:00 o'clock the evening of March 15th. Defendant opened the door, entered, walked to the foot of the bed, and asked, "Green, did you get those cigarettes I told you to buy?" Sullivan said, "Parrish, I do not have anything to do with you * * * Will you please go out of my room?" Defendant then cursed and said, "I am going to kill me a nigger tonight, before my parole is up." Defendant reached over America and struck Sullivan with a knife "around the neck and cut his throat." Sullivan "jumped out of bed and he (defendant) struck him in his back." As Sullivan ran out the door defendant "struck him on the shoulder again with the knife, and he (Sullivan) run downstairs and hid downstairs."

There had been "bad blood" between defendant and Sullivan because of accusations by Sullivan that defendant had stolen moneys belonging to America.

As a result of the stabbing Sullivan was confined to the hospital for five days. When admitted to the hospital it was found he had suffered a laceration of the neck. The cut was "about half an inch deep, down to the muscle * * * and he had three lesser stab wounds over the back * * *."

Sullivan died December 9, 1946, of infarction of the heart, kidney and spleen (the State did not charge and there was no evidence tending to show Sullivan's death was due to the assault). Sullivan had testified at defendant's preliminary hearing, however; and, at the trial, the transcript of Sullivan's testimony at the preliminary hearing was read into evidence. The testimony was, in substance, the same as America's.

Defendant's version of the occurrence was different. He testified he knocked at the door of the room occupied by Sullivan and America, and was invited to enter. Defendant inquired concerning cigarettes which he had asked Sullivan to buy, and was thereupon assaulted by Sullivan who had an ice pick. Defendant testified, "I asked him about the cigarettes, so he jumped up, starting cussing me, told me, he says, `You get out of my room.' Well, naturally, I started to back back. * * * I couldn't turn around and him with an ice pick * * * he rushed me and I hit at him with the little knife there * * * I don't know where I struck him at * * * because I was trying to back back to keep him from sticking me."

Defendant has filed no brief upon his appeal but, in his motion for a new trial, defendant assigned errors of the trial court, (1) in failing to grant a continuance; (2) in admitting into evidence the transcript of the testimony of a witness (Sullivan) given at the preliminary hearing; (3) in permitting the cross-examination of defendant relating to previous convictions, and in permitting counsel for the State to argue the convictions without explaining the convictions were to be considered only as bearing upon defendant's credibility as a witness; and (4) in failing to submit the issue of defendant's guilt of the crime of common assault. Other assignments in the motion are of such general character that they fail to comply with Section 4125, R.S.1939, Mo R.S.A. § 4125. It is required that the specific grounds or causes for a new trial must be set forth in detail and with particularity. Section 4125, supra; State v. Tolson, Mo. Sup., 215 S.W.2d 438, decided concurrently herewith.

(1) and (2) As stated, defendant assigns error in refusing the defendant's application for a continuance. Defendant asserts in his motion for a new trial that the State, prior to the trial, should have provided him with a transcript of the testimony taken at the preliminary hearing; and that because of the failure to provide him with the transcript he was unable to prepare for trial. The assertion is based on the State's purpose, announced prior to the trial, to introduce into evidence the transcript of the testimony of Sullivan. Defendant's counsel, in urging the continuance, stated he needed time to determine if the transcript was a complete and correct copy of the reporter's notes.

At the preliminary hearing defendant was represented by counsel, the same attorney who represented defendant at the trial. Defendant's attorney was doubtless familiar with the evidence introduced at the preliminary hearing. A typewritten transcript of Sullivan's testimony was made available to defendant's counsel before the introduction of any evidence at the trial, and the trial court caused the reporter (who took the testimony at the preliminary) to appear and confer with defendant's counsel. Defendant's counsel examined the transcript so made available to him and admitted it to be a true and accurate transcript of Sullivan's testimony. In our opinion there was no surprise which could be held to be prejudicial to defendant, and no good cause shown for a continuance.

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