Green v. State, 30641

• Citation: 249 Ind. 86,229 N.E.2d 726
• Decision Date: 26 September 1967
• Docket Number: No. 30641,30641
• Parties: Oscar GREEN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 726

229 N.E.2d 726

249 Ind. 86

Oscar GREEN, Appellant, v. STATE of Indiana, Appellee.

No. 30641.

Supreme Court of Indiana.

Sept. 26, 1967.

Rehearing Denied Nov. 14, 1967.

Olsen & Niederhaus, Evansville, for appellant.

John J. Dillon, Atty. Gen., Douglas B. McFadden, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by indictment with the crime of murder in the second degree, and was tried by jury in the Vanderburgh Circuit Court, which returned its verdict finding the appellant guilty of manslaughter. Thereafter, on April 13, 1964, appellant was sentenced by the court to the Indiana State Prison for not less than two (2) years not more than twenty-one (21) years.

The indictment, omitting caption, formal parts, endorsements on the back and signatures, reads as follows:

'The Grand Jurors for the County of Vanderburgh and State of Indiana, upon their Oaths, present and charge that OSCAR GREEN on or about the 24th day of DECEMBER A.D., 1962, at said County unlawfully, feloniously, purposely and maliciously, but without premeditation, did kill and murder LILLIAN RUTH GREEN, a human being, by then and there unlawfully, feloniously, purposely and maliciously, but without premeditation, shooting at and against the said LILLIAN RUTH GREEN with a certain pistol loaded and charged with gunpowder and bullets, and thereby mortally wounded the said LILLIAN RUTH GREEN with a bullet discharged and shot as aforesaid, from which mortal wound the said LILLIAN RUTH GREEN then and there sickened and languished and thereafter died on the 25th day of December, 1962. And so the Grand Jurors aforesaid, upon their oaths aforesaid, do find and say that the said OSCAR GREEN did unlawfully, feloniously, purposely and maliciously, but without premeditation, kill and murder the said LILLIAN RUTH GREEN, in manner and form aforesaid.

'Contrary to the form of the statute, in such cases made and provided, and against the peace and dignity of the State of Indiana.'

Appellant tested the sufficiency of the indictment by Motion to Quash on the grounds:

'1. That the facts stated in the Indictment do not constitute a public offense.

'2. That the Indictment does not state the offense charged with sufficient certainty.'

The motion was supported by a memorandum containing fifteen specifications.

Such Motion to Quash was submitted without argument and was overruled by the court, whereupon appellant was arraigned, entered a plea of not guilty and requested trial by jury, which request was granted and a jury ordered.

On February 25, 1963, appellant filed motion and affidavit for change of venue from the judge. The motion was sustained. Willard Schrode was selected as Special Judge and thereafter qualified as such.

On March 18, 1963, appellant filed a motion for change of venue from the county, such motion alleging in substance that he could not have a fair and impartial trial of the cause in said county on account of the excitement and prejudice existing in Vanderburgh County against him.

Thereafter, by leave of court, appellant filed his amended affidavit for a change of venue from the county. Said affidavit, omitting caption, formal parts, signature and exhibits filed in support thereof reads as follows:

'Oscar Green, being first duly sworn upon his oath, says that he is the defendant in the above entitled cause of action, and this affiant says that he cannot have a fair and impartial trial of this cause in Vanderburgh County, State of Indiana, for the following reason, to-wit:

'1. On account of the excitement and prejudice in Vanderburgh County against this defendant which excitement and prejudice this affiant says now exists by reason of the recent publicity coupled with the investigation and the attempt of revocation of the Alcoholic Beverage License of the location where the alleged murder took place.

'2. That excitement and prejudice in Vanderburgh County now exists against the defendant in that the newspapers of Vanderburgh County, namely, The Evansville Courrier (sic) and The Evansville Press have repeatedly connected the death of Lillian Ruth Green as an employee of a certain tavern in that the reputation and character of said tavern was of such a nature as to prejudice the defendant in his defense.

'3. That the newspapers of Vanderburgh County, namely, the Evansville Courrier (sic) and The Evansville Press, repeatedly stated that the law enforcing agency of the City of Evansville, the County of Vanderburgh, the State of Indiana, stated that the situs of the alleged crime as being such a one where other crime repeatedly happened has brought a state of excitement and prejudice against this defendant and said excitement and prejudice still exists.

'4. That the television and radio stations of Vanderburgh County, Indiana, have repeatedly stated that the law enforcing agencies of Vendarburgh County, Indiana, were attempting to close the situs where the alleged crime occurred and in most instances have stated that said alleged crime occurred at said situs so repeatedly to have brought about the excitement and prejudice against this defendant and that said excitement and prejudice still exists.

'5. That the Evansville Courrier (sic) and the Evansville Press as well as the news media of Television and radio stations located in Vanderburgh County, Indiana, have so linked the defendant with the law enforcing agency's accusations against the situs where said crime occurred and the law enforcing agency's attempt to close said location and that such accusations have been so widely publicized that the defendant cannot receive a fair and impartial trial as in that the minds of all prospective jurors in Vanderburgh County, Indiana, are so saturated with this information it would not help but make them prejudice.

'6. That the news media of one of the radio stations, W R O Z Radio Evansville, of the City of Evansville, Indiana, on over seventy (70) occasions broadcasted stories about the alleged crime coupled the alleged crime with the action on the part of the law enforcing agency of the City of Evansville, the County of Vanderburgh, the State of Indiana, in attempting to close the situs where said alleged crime occurred.

'7. That this defendant is filing herewith Defendant's Exhibits one (1) through seventeen (17) which are copies of the news medium from a radio station, to-wit: W R O Z Radio Evansville, in the City of Evansville, Indiana, that the other news media have broadcasted about the alleged crime connecting said alleged crime in most instances with the action on the part of the law enforcing agency of the City of Evansville, the County of Vanderburgh, the State of Indiana, in attempting to close the situs where said crime occurred in a total number to exceed one hundred (100) times but that this defendant is without funds to procure the exhibits of the same.

'8. That other news media of the television stations covering the news of the City of Evansville, Indiana, on more than sixty (60) occasions televised stories about the alleged crime connecting said crime in most instances with the action on the part of the law enforcing agency of the City of Evansville, the County of Vanderburgh, the State of Indiana, in attempting to close the situs where said alleged crime occurred. That the script of said television stations is available but this defendant is without funds for furnish the same.

'9. That the Evansville Courier and the Evansville Press and all radio and television stations in this locality have recently published, broadcasted or televised the action of the law-enforcing agency of the City of Evansville, County of Vanderburgh, the State of Indiana, in attempting to close the operation of the tavern where the alleged crime occurred.

'10. That the law enforcing agency of the City of Evansville, the County of Vanderburgh, the State of Indiana, have have repeatedly stated the situs of where the crime occurred as being operated in such a manner as to put odium to anyone who would be in said location thereby exciting prejudice against this defendant.

'11. That the law enforcing agency of the City of Evansville, the County of Vanderburgh, the State of Indiana, have publicially (sic) stated in public address that the situs of said crime of which moral turpitude could be inferred to anyone who was at said situs at any time thereby to such an extent as to arouse excitement and prejudice against the defendant in Vanderburgh County.

'12. This investigation and hearing occurred in Indianapolis, Indiana. Over forty (40) or more witnesses testified and repeatedly the alleged crime was connected with said investigation and that constantly since the date of the alleged crime, December 24, 1962, until as late as March 31, 1963, making statements as to how, where, and when said alleged crime occurred repeatedly connecting the situs of said alleged crime as a place of low morals. That connecting the deceased as an employee of said tavern and in direous (sic) and other ways a place of odium on said location to such an extent as to arouse excitement and prejudice against the defendant and said excitement and prejudice does hereby exist.

'13. That this defendant is filing herewith Defendant's Exhibits eighteen (18) through forty (40) which are pages and articles from the different newspapers which publicized the alleged crime for which the defendant is being tried and also spoke of the situs of the alleged crime.

'WHEREFORE, the defendant prays for a change of venue from Vanderburgh County, Indiana.'

On May 2, 1963, the State of Indiana filed a counter affidavit to appellant's Motion for Change of Venue, the same, omitting caption, formal parts and signature, reads as follows:

'Milford M. Miller, being first duly sworn upon his oath says:

'That he is Chief Deputy Prosecutor of and for Vanderburgh County, Indiana and that he makes this counter affidavit for and on behalf of the State of Indiana herein, in response to...