Osbon v. State, 26935.

Citation13 N.E.2d 223,213 Ind. 413
Decision Date01 March 1938
Docket NumberNo. 26935.,26935.
PartiesOSBON v. STATE.
CourtSupreme Court of Indiana

213 Ind. 413
13 N.E.2d 223

OSBON
v.
STATE.

No. 26935.

Supreme Court of Indiana.

March 1, 1938.


Wilfred A. Osbon was convicted of second degree murder, and he appeals.

Reversed for new trial.

[13 N.E.2d 223]

Appeal from White Circuit Court; Ralph C. McClurg, Judge.
R. O. Hillis, Jr., of Logansport, Howard Meyer, of Indianapolis, Jenkines & Jenkines

[13 N.E.2d 224]

of Logansport, and Geo. W. Kassabaum and Charles Siferd, both of Monticello, for appellant.

Omer Stokes Jackson, Atty. Gen., A. J. Stevenson, Asst. Atty. Gen., R. W. Scowden, of Monticello, and James P. Wason, Deputy Atty. Gen., for the State.


HUGHES, Judge.

The appellant was indicted by the White county grand jury for the murder of one Kenneth Roth and was found guilty by a jury of second degree murder, and his punishment was fixed at life imprisonment. There are two counts of the indictment.

The errors relied upon for reversal are as follows: (1) The court erred in overruling appellant's motion to quash count No. 1 of the indictment herein; (2) the court erred in overruling appellant's motion to quash count No. 2 of the indictment herein; (3) the court erred in overruling appellant's motion to quash the indictment herein; (4) the court erred in overruling the appellant's motion in arrest of judgment; (5) the court erred in overruling appellant's motion for a new trial.

In the motion to quash each count of the indictment it is charged: (a) That the grand jury which found said counts had no legal authority to inquire into the offense charged; (b) the facts stated do not constitute a public offense; and, (c) that the offense is not charged with sufficient certainty.

In appellant's motion in arrest of judgment it is charged: (a) That the grand jury had no legal authority to inquire into the offense charged by reason of said offense not being within the jurisdiction of the court within and for which the said grand jury was impaneled, charged, and sworn; (b) that the facts stated in said indictment do not constitute a public offense under the laws of the State of Indiana; (c) that the facts stated in each count do not constitute a public offense under the laws of the State of Indiana.

The reasons assigned in the motion for a new trial are that the verdict of the jury is contrary to law and is not sustained by sufficient evidence.

Count No. 1 of the indictment is as follows: ‘The grand jurors of White County in the State of Indiana, good and lawful men, duly and legally empaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of White, in the name and by the authority of the State of Indiana, on their oath present that one Wilfred Ayde Osbon, late of Carroll County on the 17th day of March, A. D., 1935, at and in Carroll County and State aforesaid, did then and there unlawfully, feloniously, purposely and with premeditated malice, kill and murder one Kenneth Roth, by then and there feloniously, purposely, and with premediated malice, unlawfully administering to the said Kenneth Roth a certain deadly poison, commonly called strychnine, which the said Kenneth Roth then and there received at the hands of the said Wilfred Ayde Osbon, and which he, the said Kenneth Roth, then and there swallowed, and by reason of which he then and there died in White County, Indiana, on March 17, 1935; he, the said Wilfred Ayde Osbon, then and there well knowing said strychnine to be a deadly poison and wickedly intending then and there and thereby unlawfully, feloniously, purposely and with premeditated malice to kill and murder the said Kenneth Roth, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.’

Count No. 2 of the indictment is in substance the same as count No. 1, except it is alleged in count No. 2 that the murder was without premeditation.

It is insisted by the appellant that each count of the indictment is fatally defective by reason of repugnancy, in that it is charged in the indictment, ‘That one Wilfred Ayde Osbon late of Carroll County on the 17th day of March, 1935, at and in Carroll County and State aforesaid, did then and there unlawfully, feloniously, purposely and with premeditated malice, kill and murder one Kenneth Roth and by reason of which he then and there died in White County, Indiana, on March 17, 1935.’ We do not believe that the foregoing allegations are so repugnant as to be sufficient grounds to quash the indictment. Section 9-1127, Burns' 1933, section 2206, Baldwin's Ind.St.1934 provides: ‘No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding be stated, arrested or in any manner affected for any of the following defects: * * * Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged. * * *

[13 N.E.2d 225]

Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.’ And section 9-211, Burns' 1933, section 2020, Baldwin's Ind.St.1934, provides: ‘If any mortal wound be given or poison administered in one county, and death, by means thereof, ensue in another, the jurisdiction is in either county.’ There can be no question that there is sufficient matter to indicate the crime and person charged. And the language of the counts of the indictment is sufficiently clear to show that it is charged therein that the poison, strychnine, was administered and given to Kenneth Roth in Carroll county, Ind., and taht by reason thereof he died in...

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