Cole v. State
| Citation | 192 Ind. 29,134 N.E. 867 |
| Decision Date | 31 March 1922 |
| Docket Number | No. 23999.,23999. |
| Parties | COLE v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.
Ralph Cole was convicted of murder in the first degree, and he appeals. Affirmed.McMahon & Conroy, of Hammond, for appellant.
U. S. Lesh, Atty. Gen., and Mrs. Ed. F. White, Deputy Atty. Gen., for the State.
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 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 his own behalf that he went from Burnham to Chicago and from there to Detroit the same afternoon, and a week later to Cincinnati, drinking and gambling at each place; that after three days he went to Dayton, and afterward from there to Chicago, and that same day to Gary on a suburban train, and that he reached his home in Gary on the evening of November 15th, and the police came and arrested him while he was in bed. The uncontradicted evidence was that the place where Johnson was found in a pool of blood and the hospital where he died were both in Lake county, Ind., and that appellant was rearrested on a charge of murder after Johnson's death.
There was no evidence tending to dispute the inference that Johnson was robbed, or that whoever robbed him struck him on the head as a means of perpetrating the robbery, or tending to show that, if he was feloniously killed at all, he was killed in the commission of any other unlawful act except robbery.
The only defense offered was a denial by appellant that he left the gambling house in the company of Johnson, or that he was at the pool room, or that he struck Johnson or took anything from him, or knew of anybody doing so, together with his explanation that he had $75 at home, and drove there to get it, and then to Burnham to get some liquor, and went to Detroit and the other cities looking for work, and that he was drunk; and the testimony of other witnesses that he left the gambling house alone, was seen going in a direction away from the pool room, apparently intoxicated, soon afterward; and other evidence tending to prove an alibi.
The trial court gave instructions, of which no complaint is made, to the effect that under the state Constitution the jury were given the right to determine both the law and the facts; that the state must prove beyond a reasonable doubt that Erick Johnson died as the result of the wound received as alleged in the indictment, and that appellant inflicted it, and that, if the jury entertained a reasonable doubt of either of such alleged facts, appellant could not be convicted under either count of the indictment; that if the evidence that he was not...
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Robinson v. State, 2-1072A80
... ... 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 of the indictment which charged that he had killed his victim in the perpetration of a robbery by beating him with a blunt ... ...
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O'Conner v. State
... ... State, (1972) 258 Ind. 692, 284 N.E.2d 770: ... It is error to give an instruction upon an issue if there is no evidence to 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. 867 ... 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 given in a criminal case unless there is evidence to which it is applicable has been decided by ... ...
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Roddy v. State
... ... The only defense evidence was that of insanity, and the defendant's testimony was that he remembered nothing of the incident. There was, therefore, no evidence 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 upheld on the basis that there was no evidence to controvert the state's proof that the defendant ... ...
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Jones v. State
... ... State, supra, and Roddy v. State, supra, it must also be determined whether the evidence warrants submission of the instruction to the jury. This second step appears to have been first considered and required in Hash v. State, supra, citing Cole v. State, (1921) 192 Ind. 29, 134 N.E. 867. (DeBruler, J., dissenting). In that case we held that although the lesser offense of theft was included in the greater offense of robbery, as charged, the evidence left no doubt but that the defendant was guilty of robbery or of no crime whatsoever ... ...