Osbon v. State, No. 26935.

Docket NºNo. 26935.
Citation13 N.E.2d 223, 213 Ind. 413
Case DateMarch 01, 1938
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 White county, Ind. The substantial rights of the defendant on the merits of the case were not affected. No error was committed by the court in overruling the motion to quash the indictment or either count thereof. There is no merit in appellant's motion in arrest of judgment. It was properly overruled.

The fifth error assigned for a reversal is that the court erred in overruling appellant's motion for a new trial for the reason that the verdict is not sustained by sufficient evidence, and is contrary to law.

The evidence given at the trial is, in substance, as follows: The appellant and his wife, Allene Osbon, lived in their cottage on Lake Freeman, which is in Carroll county, Ind. The cottage was built by them in 1929; they were living at this time in Indianapolis, and made frequent visits to the cottage until January, 1933, when they made it their permanent home. Harrison Roth and Margaret E. Roth were the parents of Kenneth Roth, and Edwin Roth, the younger brother of Kenneth. Kenneth Roth was twenty-one years of age; the appellant was fifty-eight, and his wife, Allene, was forty-four years of age. The Roths lived about one mile and a quarter from the Osbons on March 17, 1935, but at one time lived in a cottage within two hundred feet of the Osbon cottage on the lake. During this time, and up to the time of the death of Kenneth Roth, the families were on a friendly relationship. The evidence shows that in February, 1933, when the families were living at the lake, the appellant and Kenneth had some bitter words and the appellant told him to get off of his lot. Within a short time, however, they were again friendly and, as far as the evidence shows, remained so, until the death of Kenneth. Kenneth worked at various times on the Osbon automobile, and in return Mrs. Osbon would do typewriting for him. He and his brother, Edwin, visited the Osbon home at different times, and often would enter the home without knocking. Kenneth and the appellant visited Indianapolis together on two different cccasions. On one of the trips, Kenneth took the appellant in Kenneth's car, and on the other Osbon took Kenneth in Osbon's car. On Friday afternoon, March 15, 1935, the Osbons went to the Roth home to listen over the radio to the basket ball game. Kenneth and Edwin Roth were present, and there is no evidence to show that the relationship between all the parties was other than friendly. On Sunday morning, March 17, 1935, Edwin Roth was at the home of the Osbons and asked permission to use Mrs. Osbon's typewriter. She told him that he was welcome to use it and he was to return that afternoon to do so. At that time the appellant made a remark that he wanted to see Kenneth about riding to work with him on Monday morning.

On the morning of the fatal day in question, the appellant and his wife had breakfast about 9 o'clock. Mrs. Osbon prepared some soup from cold-packed meat and vegetables which had been canned by her and a neighbor lady the year before. She put it in a roaster and placed it on a heating stove. This was to be their noon meal. About noon or shortly after, Mr. and Mrs. Osbon, in an old Buick car, drove to a new bridge then being constructed across the Tippecanoe river at the edge of Monticello. The appellant talked to some workman. He left this place at about 2:30 p. m. and stopped at the Harrison Roth home. He got out of his car, went to the door, knocked, and asked for Kenneth. He learned from Mrs. Roth that Kenneth had gone to the park. The appellant testified that he wanted to see Kenneth about riding with him to Delphi on Monday. From the Roth home, the appellant and his wife...

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47 practice notes
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...State, 1925, 196 Ind. 594, 149 N.E. 168. Mere opportunity to commit crime is insufficient to sustain a conviction. Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223. 4 'It is not enough that evidence merely tends to support the conclusion of guilt; it must support it.' Martin v. State,......
  • Kestler v. State, No. 28346.
    • United States
    • Indiana Supreme Court of Indiana
    • April 6, 1949
    ...evidence must be such as to exclude every other reasonable hypothesis except that of guilt.’ (Italics added.) Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223, 227. This case then noted that a lack of motive, as is true in this appeal, is circumstantial evidence of innocence, and 213 ......
  • Yessen v. State, No. 28601
    • United States
    • Indiana Supreme Court of Indiana
    • May 24, 1950
    ...Sylvester v. State, 1933, 205 Ind. 628, 631, 187 N.E. 669; Sullivan v. State, 1928, 200 Ind. 43, 47, 161 N.E. 265; Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223; Hiner v. State, 1925, 196 Ind. 594, 598, 149 N.E. 168; Slater v. State, 1947, 224 Ind. 627, 636, 70 N.E.2d 425; 23 C.J.S......
  • Ruetz v. State, No. 175S22
    • United States
    • March 9, 1978
    ...supra; Christen v. State (1950), 228 Ind. 30, 89 N.E.2d 445; McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d 671; Osbon v. State (1938), 213 Ind. 413, 13 N.E.2d 223; Gears v. State (1931), 203 Ind. 380, 180 N.E. 585; Wrassman v. State (1921), 191 Ind. 399, 132 N.E. 673; Robinson v. State (......
  • Request a trial to view additional results
47 cases
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...State, 1925, 196 Ind. 594, 149 N.E. 168. Mere opportunity to commit crime is insufficient to sustain a conviction. Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223. 4 'It is not enough that evidence merely tends to support the conclusion of guilt; it must support it.' Martin v. State,......
  • Kestler v. State, No. 28346.
    • United States
    • Indiana Supreme Court of Indiana
    • April 6, 1949
    ...evidence must be such as to exclude every other reasonable hypothesis except that of guilt.’ (Italics added.) Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223, 227. This case then noted that a lack of motive, as is true in this appeal, is circumstantial evidence of innocence, and 213 ......
  • Yessen v. State, No. 28601
    • United States
    • Indiana Supreme Court of Indiana
    • May 24, 1950
    ...Sylvester v. State, 1933, 205 Ind. 628, 631, 187 N.E. 669; Sullivan v. State, 1928, 200 Ind. 43, 47, 161 N.E. 265; Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223; Hiner v. State, 1925, 196 Ind. 594, 598, 149 N.E. 168; Slater v. State, 1947, 224 Ind. 627, 636, 70 N.E.2d 425; 23 C.J.S......
  • Ruetz v. State, No. 175S22
    • United States
    • March 9, 1978
    ...supra; Christen v. State (1950), 228 Ind. 30, 89 N.E.2d 445; McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d 671; Osbon v. State (1938), 213 Ind. 413, 13 N.E.2d 223; Gears v. State (1931), 203 Ind. 380, 180 N.E. 585; Wrassman v. State (1921), 191 Ind. 399, 132 N.E. 673; Robinson v. State (......
  • Request a trial to view additional results

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