Bielich v. State

• Decision Date: 17 February 1920
• Docket Number: 23,638
• Citation: 126 N.E. 220,189 Ind. 127
• Parties: Bielich v. State of Indiana
• Court: Indiana Supreme Court

126 N.E. 220

189 Ind. 127

Bielich v. State of Indiana

No. 23,638

Supreme Court of Indiana

February 17, 1920

From Lake Criminal Court; Martin J. Smith, Judge.

Prosecution by the State of Indiana against Damjan Bielich. From a judgment of conviction, the defendant appeals.

Reversed.

McMahon & Conroy, for appellant.

Ele Stansbury, Attorney-General, and A. B. Cronk, for the state.

Lairy J. Harvey, J., absent.

OPINION

Lairy, J.

On July 2, 1919, the grand jury of Lake county returned an indictment into the criminal court of that county by which appellant was charged as accessory after the fact to the crime of murder in the first degree, committed by one Thomas M. Batchelor on the person of one Herman Uecker.

The crime of accessory after the fact in felonies is defined by § 226 of our Criminal Code, which provides that on conviction the accessory shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal. § 2097 Burns 1914, Acts 1905 p. 584. To constitute a person an accessory after the fact, under the provisions of this statute, it must appear that a felony was committed, and that after the commission of such felony the person charged as accessory did harbor, conceal, or assist the person who committed the felony with intent that he should escape from detection, arrest, capture, or punishment for such offense. From this definition it is apparent that intent to assist the principal to escape detection, arrest or punishment for the commission of a felony is an essential ingredient of the crime; and this involves knowledge on the part of the accused, at the time such aid or assistance is given, of the commission of the felony and of the fact that the person aided or assisted had committed the offense or was connected therewith. This element of the offense is pointed out at this time because it is regarded as having an important bearing on the questions which arise for decision in this appeal.

July 3 1919, the next day following the return of the indictment, the appellant was brought into court, and the record shows that he entered a plea of guilty to the indictment, which the court accepted, and that the court at once fixed his punishment at imprisonment in the state prison for the term of his natural life, and entered judgment accordingly.

On July 10, 1919, appellant appeared by attorney and filed a motion for an order granting him leave to withdraw his plea of guilty and to enter a plea of not guilty to the indictment. On the 24th day of the same month appellant was brought into court, at which time affidavits were filed in support of his motion previously filed, and affidavits by the state were filed in opposition thereto. On the following day the court, having considered the motion and affidavits, overruled the motion, to which ruling the appellant excepted. The assignments of error present for review the action of the court in overruling this motion.

The motion for leave to withdraw the plea of guilty was based on several grounds, only three of which will be considered. The second specification states that appellant was entitled to the rights guaranteed by Art. 1, § 13, of the state Constitution; and that he was denied the right to appear by counsel or to consult with counsel before entering his plea to the indictment. By the seventh specification, appellant alleges that he was not informed of the nature and cause of the accusation against him. By the eighth specification appellant alleges that the plea of guilty entered in his behalf was not his plea; that appellant pleaded not guilty, but, being unable to speak and to understand sufficiently the English language, appellant was grossly imposed on by Christ Kovacevich, who, acting as an officer of the court, deliberately and falsely represented to the court that the plea of appellant was guilty as charged in the indictment.

From the undisputed facts disclosed by the affidavits filed in support of the motion and those filed in opposition thereto it clearly appears that appellant was denied the right to be represented by counsel. Appellant states in his affidavit that while he was in jail he asked an officer in charge to notify Joseph H. Conroy to represent him as his attorney, and that later, when he was brought into court to plead to the indictment, he requested of Christ Kovacevich and Captain Vodicka, both officers of the police department of the city of Gary, to have Mr. Conroy present to appear for him. He states further that both of these officers told him that he did not need a lawyer as he would be released on bond if he told the same story to the court which he had told to them. Each of these officers made an affidavit in opposition to the motion, and they both deny making the latter statements; but neither of them denies that appellant requested them to notify Mr. Conroy to represent him, and neither offers any excuse for not complying with such request.

The unconflicting statements of the affidavits show that, when appellant was brought into court on July 3, 1919, the indictment was read to him in English, and Christ Kovacevich, acting as interpreter for the court, attempted to explain to appellant the meaning of the indictment. It appears that appellant did not enter any plea at that time, and that he was taken back to jail. About fifteen or twenty minutes later he was again brought before the court, at which time the judge stated to him in the English language that he had a right to have and could have an attorney; that he could plead not guilty and have a jury trial; and that, if he pleaded guilty, the court would have a right to punish him according to law. The court then instructed Kovacevich to so inform appellant. The interpreter talked to appellant in his own language and then informed the court that appellant said he was guilty and desired to plead guilty. The court then said: "Now you understand, that upon your plea of guilty, it will be the duty of the court to impose the penalty as provided by law." After again talking to appellant in the Serbian language, the interpreter informed the court that appellant so understood. The court then said: "With that understanding, I will accept your plea of guilty."

It thus appears that the officers who had charge of appellant refused or ignored his requests to be represented by counsel; and it does not appear that the court, before accepting his plea made any inquiry as to his desire to be represented by counsel, or as to his...