Castro v. State

Decision Date21 April 1925
Docket Number24,766
Citation147 N.E. 321,196 Ind. 385
PartiesCastro v. State of Indiana
CourtIndiana Supreme Court

Rehearing Denied July 2, 1925.

1 HOMICIDE.---Evidence admitted by the court without objection must be presumed not harmful.---In a trial for murder references made in the evidence to the accused as a Mexican to the foreign neighborhood in which he lived, to the fact that the accusing witnesses were Mexicans, etc., are not necessarily harmful to the accused, and in the absence of an affirmative showing of prejudice, the appellate court must assume that what counsel did not object to, and the trial court permitted was not harmful. p. 390.

2. CRIMINAL LAW.---Without affirmative showing of error the appellate court will indulge presumptions sustaining lower court.---When a court trying an appeal is left without an affirmative showing, and must indulge presumptions, it will indulge those which tend to uphold the action of the court below, and not those which tend to overthrow the action. p. 390.

3. CRIMINAL LAW.---No error can be predicated upon evidence stricken out, or to which objection is sustained.---No error can be predicated on the introduction of hearsay evidence when objections to some of it are sustained, and the remainder is ordered stricken out by the court with the instruction that it is hearsay. p. 391.

4. CRIMINAL LAW.---On appeal the court will presume that defendant was properly defended below, in the absence of any proper showing.---Upon a representation by counsel for appellant that the attorney appointed by the court to represent a pauper defendant in the trial court exhibited neglect, apathy and lack of diligence in conducting the defense the Supreme Court must presume that the trial court was able to judge of the ability, energy and diligence of the attorney, and that he was properly defended, in the absence of any showing of negligence other than the ex parte affidavit of appellant who could not understand the language. p. 391.

5. CRIMINAL LAW.---Conviction will not be reversed upon mere suspicion that defendant was not efficiently defended.---Where a defendant has been found guilty on evidence that amply supports the verdict, and the trial court, by overruling his motion for a new trial has adjudged that he had a fair trial, the Supreme Court will not reverse the judgment of conviction upon mere suspicion that he was not efficiently defended by his attorney. p. 391.

6. CRIMINAL LAW.---Without showing of lack of full facts at trial or absence of witnesses, defendant not entitled to new trial.---The opinion expressed in an affidavit filed with motion for new trial that if a proper defense had been made by attorney for defendant, he might have been acquitted or the penalty mitigated, is not sufficient to warrant a direction for a new trial, in the absence of a showing that facts were not fully presented at the trial, or that other witnesses might have been called. p. 392.

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

Jose Castro was convicted of murder in the first degree and he appeals.

Affirmed.

Julius I. Puente and William H. Matthew, for appellant.

Arthur L. Gilliom, Attorney-General, and U. S. Lesh, for the State.

OPINION

Ewbank, J.

Appellant was charged by indictment with the crime of murder in the first degree, and being found guilty was sentenced to die by electrocution. Overruling his motion for a new trial is assigned as error. The undisputed evidence showed that Paul Budich, a detective or "plain clothes" police officer of Indiana Harbor, was wounded while in that city by a bullet fired from appellant's pistol on April 10, 1924, which passed through his liver and intestines, and died of that wound in a hospital at Gary, Indiana, on April 20; and that appellant was under arrest continuously from the day of the shooting and was twice taken to see Budich at the hospital. And the record discloses that the indictment on which appellant was tried was returned April 24, that he was arraigned May 7, and was tried and found guilty May 23, 1924.

The first specification in the motion for a new trial is that the verdict is not sustained by sufficient evidence. Appellant gave his testimony through an interpreter, and testified in his own behalf that he was twenty-three years old and unmarried, that his parents were living, and that his home is at Nogales, Arizona (which is near the Mexican border); that five years before he had worked in the grape fields of California; that he had been in Indiana Harbor a little more than a year, for the first eight months of which he had operated a boarding house there; that he had never worked for anybody else there; that he was at the penal farm thirty days, the charge against him having been the sale of liquor that he owned the pistol with which Budich was shot; that he had bought it to defend his house and was carrying it that day because he had no home or fixed room to keep it in, but was sleeping any place he would see a hotel or boarding house; that he had quit keeping the boarding house about four months before the trial; that he was carrying the pistol in his belt when he met Budich in the street on Pennsylvania avenue, about a block from the place kept by Gonzales; that Budich came up and caught hold of him and tried to take the pistol from him; that Budich "grabbed" it by the barrel, and he (appellant) struggled with him a little bit, when the pistol went off, and he then "grabbed" the pistol and ran down the street; but that he was so drunk he did not know what he was doing, and could not remember what happened, and did not know Budich was shot until they took him to the hospital at Gary to see the injured man; that both he and Budich...

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