190 Ind. 600 | Ind. | 1921
— On July 16, 1920, a grand jury of Lake county, in the court below, returned an indictment charging appellant with the crime of murder in the first degree. Acts 1905 p. 584, §347, §2235 Burns 1914. On July 22, 1920, appellant waived arraignment, pleaded not guilty, was tried before a jury, a verdict of guilty as charged was returned and, on July 30, 1920, he was sentenced to suffer death, and judgment was entered accordingly. The overruling of appellant’s motion for a new trial is the only error assigned.
The grounds relied on to support the motion are: (1) The verdict is contrary to law; (2) the verdict is not sustained by sufficient evidence; (3) the defendant was, by surprise, which ordinary prudence could not have guarded against, prevented from having a fair trial.
Appellant grounds his third specification on the sixth clause of §2158 Burns 1914, Acts 1905 p. 584, §282, which provides that the court shall grant a new trial to the defendant in case of “accident or surprise which ordinary prudence could not have guarded against.” The accident or surprise relied on is made to appear
We will first direct attention to the evidence, in substance, as follows: On May 2, 1920, about forty invited guests, all Croatians, were present at a wedding celebration at Croatian Hall in Gary, Indiana. The hall where the people were congregated was a one-story building with basement. The first floor was used for dancing and the basement was furnished with a stove and cooking utensils, which were used on this occasion in the preparation of the evening meal, which was served on the first floor. At about 4:30 o’clock appellant and a friend of his, both Croatians, entered the basement where nonintoxicating drinks, such as homemade grape juice and pop, were being served, although appellant’s friend testified that they were serving whisky and wine they called “grape juice.” Appellant and his friend took a few drinks. Witnesses testified that they began to talk about fighting, but what they said was not stated. The host was notified of their talk and he came to the basement and said: “Friends, this is no place to talk fight today, because I am getting married. I want my friends here and I want everything to be peace. If you want to talk fight, it is best for you to get out.” Appellant’s friend then said: “Don’t be afraid, we won’t start no fight.” The friends then shook hands with the host and both left. They returned about 7:30. in the evening. About twenty minutes thereafter this friend of appellant and one of the guests had what
Eight witnesses were examined on behalf of the state and one, the party who accompanied appellant that evening, on behalf of the defense.
This general .statement of the case, as made by the evidence, may be considered in connection with the affidavits heretofore mentioned.
In substance, appellant’s affidavit states that he is a Croatian and does not speak or understand the English language understanding^; that he did not have, nor has he now, any means or property with which to employ counsel or to prepare a- defense to the charge made against him, nor has he any friends or relatives to lend him any assistance; that in the trial court his defense was referred to the pauper attorney. Appellant further states that he has been confined in the county jail of Lake county continuously since the killing of Svastovich, and that his only opportunity to talk with the attorney so furnished him was about two days- before his trial and, as he could not talk English sufficiently to fully explain his defense, and not having an
The affidavit of appellant’s attorney, among other things, stated that under his contract with the county for $198 per year he had been called upon to defend more than twenty-five criminal cases in the criminal court of Lake county, four of which, including this one, were capital cases; that he had no means or money with which to investigate the facts of this case or seek and find witnesses; that his office was at Crown Point and the scene of the alleged crime was in Gary, where all the witnesses to the transaction resided; that two days before the trial he called on appellant who advised him that at the time of the shooting he was drunk and had no recollection of all that transpired; that affiant did not fully understand appellant, who spoke English brokenly, and he was not able to obtain an interpreter at the interview; that he did not feel justified in spending time and money in investigating the truth of appellant’s statement, but believed that his duty was fulfilled in having the full facts as the state might adduce them, or as might be adduced by this affiant as such attorney from the state’s witnesses, and affiant informed the jury in substance that his function as such lawyer had been performed under his contract.
Appellant’s attorney in the trial court is not appearing for him in this court. It is therefore apparent that some arrangements have been made whereby appellant has been able to induce counsel of high standing in the profession and well learned in the law to prepare and present his case to this court on appeal.
The ingenuity of 'counsel in their attempt to show error of the trial court in failing to see that appellant had' a fair and impartial trial, on the theory of incompetency or gross neglect of appellant’s counsel in the performance of his duty to his client in that court, is
The object of the affidavits was to bring to the trial court’s attention the circumstances which occurred during the progress of the trial and obviously apparent to the court, supplemented by other facts, and together, in the opinion of counsel, sufficient, under §2158, swpra, to require the court to grant appellant a new trial.
Conceding that the proper practice requires a party who is surprised at the testimony of a witness to move for a continuance on account of such surprise, which was not done in this case, and that a “strong and clear case must be made before a reversal will be grounded upon such cause.” (Kelley v. Kelley [1894], 8 Ind. App. 606, 611,34 N. E. 1009). Still under the circumstances of this particular case we would not be inclined to a strict enforcement of this rule, if there was, in law, any real substantial grounds shown upon which to basé a surprise.
In this case there is no claim that the shooting was done in self-defense, and the sudden heat rests upon the provocation from being told that his presence was not wanted, followed by an attempt to forcibly eject him, notwithstanding his announcement that: “There is no man who could put me out.” Appellant is shown to have used vile language, but it does not appear to whom, if any one, he addressed this language. At least three different persons endeavored to persuade him by gentle means to leave the building. This was done after his announced purpose not to go. All of these circumstances were before the jury, and from which the jury might- consider or measure the time appellant had to formulate a conclusion as to his further actions, as bearing upon the question of premeditation. “Premeditation implies that the slayer had time and opportunity for deliberate thought; that after his mind conceived the thought of taking the life he,meditated upon it and formed a deliberate determination to do the act; but there need be no appreciable space between the formation of the intention to kill and the killing. The formation of the intention to kill and the killing may be instantaneous, as successive thoughts. After such a determination is so formed, and then carried into execution, no matter how soon thereafter, it is murder in the first degree; otherwise it is not.” This quotation is
Upon a careful consideration of this entire record, arid confining ourselves to the legal principles which must govern the questions presented by this appeal, we-are prohibited from disturbing the judgment of the trial court.
Judgment affirmed.