Castro v. State

Decision Date21 April 1925
Docket NumberNo. 24766.,24766.
PartiesCASTRO v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

José Castro was convicted of murder in the first degree, and he appeals. Affirmed.

Julius I. Puente, of Chicago, Ill., for appellant.

A. L. Gilliom, of Indianapolis, for the State.

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, Ind., on April 20th; 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 24th, that he was arraigned May 7th, and was tried and found guilty May 23, 1924.

[1] 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 23 year old and unmarried, that his parents were living, and that his home is at Nogales, Ariz. (which is near the Mexican border); that 5 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 8 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 30 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 4 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 had hold of the gun when it went off; that when Budich took hold of the barrel of the pistol he began striking appellant with it, and then appellant grappled with him, and that was when it went off; that Budich did not say he was a policeman or say anything else, and appellant had never seen him before he grabbed the pistol; and that appellant had bought a drink of “moonshine” at the place kept by Gonzales that morning and also a bottle of moonshine which he carried in his pocket at the time.

No other witness was called by the defense. But 5 witnesses testified in rebuttal that when arrested, a few moments after the fatal shot was fired, appellant was not drunk, that there was no indication that he had been drinking, and that no bottle of liquor was found on him. And two witnesses named Gonzales, called by the state, testified that they were talking in a room where one of them kept soda, near beer, and cigars for sale, when appellant came in and stood by the bar; that about two minutes later Budich came in and stood beside appellant, when he drew his coat open at one side, and spoke to appellant, saying something which the witnesses did not hear distinctly, and a shot, or maybe two shots, were then fired by appellant, and Budich fell to the floor; that appellant went outside with the gun in his hand, and Budich said to follow him that he hit me,” and himself went outside and shot at appellant on the street, and appellant shot at him while running down the street; that Budich called to persons outside...

To continue reading

Request your trial
10 cases
  • Magley v. State
    • United States
    • Indiana Supreme Court
    • October 21, 1975
    ... ... Lowe v. State (1973), Ind., 298 N.E.2d 421; Blackburn v. State (1973) Ind., 291 N.E.2d 686; Sargeant v. State (1973), Ind.App., 299 N.E.2d 219. Perfunctory representation is not enough. Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848; Castro v. State (1925), 196 Ind. 385, 147 N.E. 321. Counsel must have reasonable time for pre-trial preparation. Hartman v. State (1973), Ind.App., 292 N.E.2d 293. Deliberate choices made by counsel for some contemplated tactical or strategic reason which turn out to be detrimental to the client's ... ...
  • Schmittler v. State
    • United States
    • Indiana Supreme Court
    • June 22, 1950
    ... ... Under the circumstances in this record, the payment of the $5 fee was a gross overpayment. The representation here was merely perfunctory, passive and casual. Abraham, et al. v. State, 1950, Ind.Sup., 91 N.E.2d 358; Rhodes v. State, 1927, 199 Ind. 183, 156 N.E. 389; Castro v. State, 1925, 196 ... Page 196 ... Ind. 385, 147 N.E. 321; Wilson v. State, 1943, 222 Ind. 63, 51 N.E.2d 848; Bradley v. State, 1949, Ind.Sup., 84 N.E.2d 580; Sanchez v. State, 1927, 199 Ind. 235, 157 N.E. 1; Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R ... ...
  • Davis v. State, PS
    • United States
    • Indiana Appellate Court
    • March 26, 1981
    ... ... State, (1954), 234 Ind. 27, 33-4, 123 N.E.2d 180, 182; Wilson v. State, (1943), 222 Ind. 63, 81, 51 N.E.2d 848, 855; Castro v. State (1925), 196 Ind. 385 (147 N.E. 321) ... "Although decided under a standard of 'reasonably competent' representation, we note with approval the following language of the United States Court of Appeals, District of Columbia Circuit: ... 'This court does not sit to second guess strategic ... ...
  • Wilkins v. State
    • United States
    • Indiana Appellate Court
    • September 28, 1981
    ... ... State, (1954), 234 Ind. 27-33-4, 123 N.E.2d 180, 182; Wilson v. State (1943) 222 Ind. 63, 81, 51 N.E.2d 848, 855; Castro v. State, (1925) 196 Ind. 385, 391, 147 N.E. 321, 323 ... "Although decided under a standard of 'reasonably competent' representation, we note with approval the following language of the United States Court of Appeals, District of Columbia Circuit: ... 'This court does not sit to second guess ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT