Osburn v. The State

Decision Date23 February 1905
Docket Number20,378
Citation73 N.E. 601,164 Ind. 262
PartiesOsburn v. The State
CourtIndiana Supreme Court

From Adams Circuit Court; Richard K. Erwin, Judge.

Prosecution by the State of Indiana against Joseph Osburn for murder. From a judgment entered on a verdict of guilty of murder in the second degree and assessing a penalty of life imprisonment, defendant appeals.


David E. Smith, D. D. Heller & Son and William M. Amsden, for appellant.

Charles W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild and W. C. Geake, for the State.


Monks, J.

Appellant was charged by indictment with murder in the first degree, in the killing of his father-in-law, John Busenbark. The plea was not guilty. A special plea that he was a person of unsound mind when the alleged offense was committed was filed. A trial of said cause resulted in a verdict of guilty of murder in the second degree. Over a motion for a new trial, judgment was rendered on the verdict. The overruling of the motion for a new trial is assigned for error.

Misconduct of a juror is assigned as a cause for a new trial, but the affidavits in support of said motion have not been made a part of the record by bill of exceptions. There is nothing therefore, in the record to sustain said cause for a new trial. Crawford v. State (1901), 155 Ind 692, 696, 697, 57 N.E. 931, and cases cited.

It appears from the evidence, without conflict, that appellant was, at the time of the killing of John Busenbark, thirty-five years of age, and weighed about 140 pounds; he was married, and had three children, the oldest being about eight years of age. John Busenbark, the deceased, was a widower, sixty-eight years old, and weighed about 180 pounds. He resided with the appellant who was his son-in-law, on a farm of 120 acres in Adams county, owned by them as tenants in common. This farm they had bought in March, 1903, and executed a mortgage thereon for $ 4,500, the unpaid purchase money. The same month they moved to the farm from Grant county, Indiana. It was arranged that appellant was to do the work on the farm and hire one hand, and receive three-fourths of the crops, and the deceased one-fourth; and they were to own the stock on the farm in the same proportion. The deceased was to do no work, except to feed his own driving horse. They continued to live together on the farm until September 8, 1903. In the meantime, appellant, owing to the bad season of that year, was troubled about his ability to meet his payments on the land. It was reported to him that the deceased had said to Ira Richards, appellant's hired hand, that when Joe (appellant) "could not meet the payments, and the farm had to sell, he intended to buy it in." Appellant had also been informed by Richards that the deceased had said he would not make any more payments on the land, to which appellant responded: "You don't think he is going back on me, do you?" Afterwards, in another conversation, appellant said to Richards: "If he [the deceased] goes back on me, he will never go back on anyone else." They had a number of disputes about the farm, its management, and about paying for it, and there was bad feeling between them on account of these difficulties. Appellant desired to sell the land, and on September 8, 1903, after the return of the deceased from Decatur, about 3 o'clock in the afternoon, they started from the house to the barn, and were talking about the sale of the farm. When they came to a wagon, upon which Ira Richards was engaged in loading manure, after a few words appellant struck the deceased in the chest, and the combat commenced, in which appellant inflicted injuries upon the face and head of the deceased, which caused his death next day between 3 and 4 o'clock in the afternoon. The nose of deceased was broken between the eyes, and lay over on the side; his face was mashed in; the bones under the eyes broken and crushed in; the upper jaw broken (just below the malar bone) in two pieces, and the "roof of the mouth was caved in." His face was swollen so that his eyes were closed thereby. His neck had the appearance of having been clinched with the fingers, as though it had been crushed by the hand, the fingers and the thumb. There were three wounds on the forehead above the eyes, made with some blunt instrument. Two witnesses, physicians, testified that in their opinion all of the injuries were not inflicted with the naked fist, that some of them could not have been so made. One physician testified that, in his judgment, one wound on the right side of the nose, extending near to the corner of the mouth, was made with the end of a closed knife held in the hand. There were all kinds of stones and bricks in the barnyard, and within five or six feet of where the deceased was lying when he was injured by appellant.

Ira Richards, appellant's hired hand, and Dale Osburn, appellant's oldest son, were the only persons who saw the difficulty, except the parties thereto. Richards testified that he was loading manure on the wagon at the front end, the rear end being toward the south. When appellant and the deceased approached the wagon from the south, they were talking about the farm. The deceased sat down upon the middle bottom board of the wagon-bed, which projected about eighteen inches from the rear axle, and commenced whittling the upright on the side of the wagon-bed with a small black-handled knife. Appellant stood from four to six feet from the deceased, and spoke about selling the farm, and words passed back and forth between them, when appellant stepped toward the deceased and struck him in the breast. The deceased "slid off the board and struck at appellant as he slid." As his feet met the ground he struck at appellant again. Appellant stepped sideways in a southwesterly direction as the deceased struck at him; he did not know whether either blow hit appellant. The next thing witness saw, the deceased was on the ground, and appellant was pounding him in the face. He did not see anything in appellant's hands, and did not know whether he had anything in his hands or not while he was striking the deceased in the face. He struck him as many as five or six times. Witness walked from the front end of the wagon around the deceased, saying as he went: "Joe! Joe! don't kill him," and took hold of appellant's arm and took him away. Appellant's right hand had blood on it, and he went to the tank near by and washed his hands. Dale Osburn testified that he started from the house to the barn with appellant--his father--and the deceased--his grandfather; that he heard the deceased say to appellant that he did not want to have any trouble. While deceased was sitting on the back end of the wagon appellant struck the first blow, hitting the deceased on the breast with his fist, and grabbing at his throat; at once the deceased slid off the board and struck at appellant twice, not hitting him either time; then appellant struck the deceased several times, and the deceased stumbled and fell, and appellant knelt down on his knees and commenced hitting the deceased on the face, when Richards came and took him away from the deceased. The sheriff of the county testified that he examined appellant's right hand in the evening of the 8th of September, and there were no "injuries or marks thereon, and none on or by the knuckles." Appellant did not testify in said cause.

Four separate and distinct rulings of the court below made against appellant in overruling objections of appellant to the conduct of the prosecuting attorney in his argument to the jury are assigned, jointly or in gross, as the fourth cause for a new trial. To render the same available, all of said rulings must be erroneous. Sievers v. Peters, etc., Lumber Co. (1898), 151 Ind. 642, 663, 664, 50 N.E. 877; Ohio, etc., R. Co. v. McCartney (1890), 121 Ind. 385, 387, 23 N.E. 258.

The bill of exceptions contains but a meager statement of the alleged misconduct of the prosecuting attorney, but we may assume therefrom that he was arguing to the jury, among other things, that appellant inflicted some of the injuries upon the face and head of the deceased with a knife which he held in his hand, and that, while so contending, he held in his hand the knife exhibited to the jury as the one taken from appellant, and said: "When Joe [appellant] struck the old man with this knife." Whereupon appellant objected because there was no evidence that appellant used a knife in the combat with the deceased, or struck or attempted to strike him with a knife, and moved that the court require the prosecuting attorney to withdraw said statement, and that the court admonish the jury to disregard the same, which motion was overruled by the court; to which ruling appellant excepted. Afterwards, during the argument, the prosecuting attorney said, "I have a right to say it was done with this knife," when a like objection and motion were made, and the motion overruled, and exception taken. The physician who was called to treat the deceased on the same day he was injured, and who assisted at the "post-mortem examination," testified at the trial that he thought the wound on the cheek-bone was made "with a closed knife held in the hand and struck against the cheek-bone, fracturing it," giving his reasons for such opinion. Other witnesses testified as to the character and nature of the injuries on the face and head of the deceased, and that in their opinion all of said injuries were not inflicted with the naked fist. It is evident, from an examination of the evidence, that the prosecuting attorney had the right to argue to the jury that the injuries on the face were not all made with the naked fist, but that they were made with some hard substance, as a knife held in the hand of appellant....

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