Cole v. State, No. 23999.

Docket NºNo. 23999.
Citation192 Ind. 29, 134 N.E. 867
Case DateMarch 31, 1922
CourtSupreme Court of Indiana

192 Ind. 29
134 N.E. 867

COLE
v.
STATE.

No. 23999.

Supreme Court of Indiana.

March 31, 1922.


Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Ralph Cole was convicted of murder in the first degree, and he appeals. Affirmed.

[134 N.E. 868]


McMahon & Conroy, of Hammond, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Ed. F. White, Deputy Atty. Gen., for the State.


EWBANK, C. J.

Appellant was charged with murder in the first degree. The jury found him guilty under the fourth count of the indictment, which charged that at Lake county, Ind., he robbed Erick Johnson of a sum of money and some checks of a value as stated, belonging to said Johnson, and that in perpetrating the crime of robbery appellant killed and murdered Johnson by beating and wounding him with a deadly weapon and blunt instrument, the name and character of which was unknown. The verdict fixed his punishment at imprisonment for life. The only error assigned is overruling the motion for a new trial, and the only specifications in the motion not waived are the giving and refusal of certain instructions.

The first and second counts of the indictment charged that appellant did “unlawfully, feloniously, purposely, and with premeditated malice kill and murder Erick Johnson,” by striking and wounding him with “a certain deadly weapon”; the two counts only differing in that the first alleged this weapon to have been a wrench, and the second charged that it was a blunt instrument of unknown name and character.

The witnesses for the state testified that appellant and Erick Johnson were at a gambling house in Gary together for several hours in the early morning of Sunday, October 31, 1920, the day the alleged robbery and murder occurred; that Johnson had a roll of money and some checks; that both were drinking, and appellant engaged in a game of “craps”; that he lost the money he had with him, and Johnson cashed checks for him three different times, in the total amount of $75, and he lost it all; that they left that place together about 6 o'clock that morning; that before the owner was out of bed they came to the back door of a house several blocks away, the front part of which was used as a pool room and soft drink parlor, while the owner and his family lived in the back part, and were there admitted to the kitchen at 20 minutes past 6; that each had two drinks of whisky there, and Johnson exhibited his roll of money and some checks, including one for $25 and one for $50, which latter the appellant, “pretty near crying at the time,” said were his checks, also stating that he lost $100 in a game somewhere; that Johnson sent the proprietor to a restaurant for breakfasts for them and himself, and in answer to an inquiry by appellant he told appellant he would be gone 10 or 15 minutes; that he went out through the pool room, leaving the front door unlocked, obtained three breakfasts of ham, eggs, potatoes, bread, and butter from a restaurant two blocks away, and returned as soon as the three breakfasts were prepared, which was “maybe 15 minutes,” when he found Johnson alone in the pool room, lying on the floor between the tables, with his pockets empty, a wound on the top of his head at the left side, unconscious, and blood all over the floor; that this wound was made by a blow from something that had a blunt edge and fractured the skull, broke the skin, and drove the hair down into the wound; that appellant had left the house, and the front door was locked; that appellant had been working in a garage until the night before, and was not discharged, and did not notify his employers that he would quit; that at 40 minutes past 6 that morning appellant called by phone for a taxicab to come for him to an address two or three blocks from the pool room; that a taxicab was driven there immediately, and appellant drove in it to his father's home in Gary, where he got a coat, stopping not more than 5 minutes, and then drove 12 or 16 miles to Burnham, across

[134 N.E. 869]

the state line in Illinois, where he stopped at a saloon; that he paid the taxicab fee of $7 out of a $20 bill; that he discharged the taxi early enough that it was back in Gary at 8:05 that morning; that he was arrested in Gary on a charge of grand larceny 16 days later; and appellant testified on...

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22 practice notes
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1974
    ...the verdict or that the trial court was not in error in instructing it that it could return such a verdict. In Cole v. State (1922), 192 Ind. 29, 134 N.E. 867, the Supreme Court had before it an appeal in a case in which the appellant had been convicted of first degree murder under a count ......
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1978
    ...support it. Lamb v. York, (1969) 252 Ind. 252, 247 N.E.2d 197; Kennedy v. State, (1935) 209 Ind. 287, 196 N.E. 316; Cole v. State, (1922) 192 Ind. 29, 134 N.E. Hash at 774; See also Hitch v. State, (1972) 259 Ind. 1, 284 N.E.2d 783. As stated in Cole, supra : That an instruction need not be......
  • Commonwealth v. Gricus
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 11, 1944
    ...the full court following Commonwealth v. Pemberton, 118 Mass. 36, 44. See also Commonwealth v. Desmarteau, 16 Gray 1, 9, 10;Cole v. State, 192 Ind. 29, 36, 134 N.E. 867. Upon the evidence the jury properly could find that the defendant killed Mrs. Parent either in reducing her to helplessne......
  • Roddy v. State, No. 3-378A75
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1979
    ...to which the included offense instruction was applicable. Hash v. State (1972), (258) Ind. (692), 284 N.E.2d 770; Cole v. State (1922), 192 Ind. 29, 134 N.E. 867. . . 262 Ind. at 288, 315 N.E.2d at 354. In those cases cited by the Court in Hester, trial courts' refusals of instructions were......
  • Request a trial to view additional results
23 cases
  • Commonwealth v. Gricus
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 11, 1944
    ...the full court following Commonwealth v. Pemberton, 118 Mass. 36, 44. See also Commonwealth v. Desmarteau, 16 Gray 1, 9, 10;Cole v. State, 192 Ind. 29, 36, 134 N.E. 867. Upon the evidence the jury properly could find that the defendant killed Mrs. Parent either in reducing her to helplessne......
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1974
    ...the verdict or that the trial court was not in error in instructing it that it could return such a verdict. In Cole v. State (1922), 192 Ind. 29, 134 N.E. 867, the Supreme Court had before it an appeal in a case in which the appellant had been convicted of first degree murder under a count ......
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1978
    ...support it. Lamb v. York, (1969) 252 Ind. 252, 247 N.E.2d 197; Kennedy v. State, (1935) 209 Ind. 287, 196 N.E. 316; Cole v. State, (1922) 192 Ind. 29, 134 N.E. Hash at 774; See also Hitch v. State, (1972) 259 Ind. 1, 284 N.E.2d 783. As stated in Cole, supra : That an instruction need not be......
  • Roddy v. State, No. 3-378A75
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1979
    ...to which the included offense instruction was applicable. Hash v. State (1972), (258) Ind. (692), 284 N.E.2d 770; Cole v. State (1922), 192 Ind. 29, 134 N.E. 867. . . 262 Ind. at 288, 315 N.E.2d at 354. In those cases cited by the Court in Hester, trial courts' refusals of instructions were......
  • Request a trial to view additional results

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