Dundovich v. State

• Decision Date: 07 June 1921
• Docket Number: No. 23852.,23852.
• Parties: DUNDOVICH v. STATE.
• Court: Indiana Supreme Court

190 Ind. 600

131 N.E. 377

DUNDOVICH

v.STATE.

No. 23852.

Supreme Court of Indiana.

June 7, 1921.

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

Nick Dundovich was convicted of murder in the first degree, and he appeals. Judgment affirmed.

McMahon & Conroy, of Hammond, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

MYERS, J.

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; section 2235, Burns 1914. On July 22, 1921, appellant waived arraignment, pleaded not guilty, was tried before a jury, a verdict of guilty as charged 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 section 2158, Burns 1914, 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 by an affidavit signed by himself and the affidavit of the attorney who appeared for him at the trial. These affidavits are made a part of the motion, and, with the affidavit of his said attorney on behalf of the state in opposition to the motion, are brought into the record by a special bill of exceptions. The evidence is in the record by a general bill of exceptions. The indictment was in the usual form where a revolver is used in the perpetration of the crime and is not questioned.

We will first direct attention to the evidence, in substance, as follows: On May 2, 1920, about 40 invited guests, all Croatians, were present at a wedding celebration at Croatian Hall in Gary, Ind. The hall where the people were congregated was a one-story building and 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 to-day, 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 friend then shook hands with the host and both left. They returned about 7:30 in the evening. About 20 minutes thereafter this friend of appellant and one of the guests had what the witnesses termed “some words,” but what was said does not appear. Another guest spoke to appellant, who was somewhat intoxicated, and requested him to leave the premises. Appellant replied that no one could put him out. He was again asked to go out, and some one took him by the arm, when he jerked loose and began swearing and using vile language. He was then told that he must go out. It was then the host appeared on the scene and said:

“Listen here; you was here this afternoon, and I told you don't come here any more. You have a drink, pop or grape juice, and then go out”

-and further saying that he had invited his friends and their families and he did not wish to have any trouble. He then went away. They made no effort toward getting out. A guest then approached them and asked:

“Was they invited in here?” “Mister, who invited you in this place?”

Appellant said:

“I will show you the man in a minute.”

He looked around and said:

“Well, nobody didn't invite me and it ain't your business.”

The guest then said:

“Nobody come here and have any trouble and we ask you like a man to get out when you are ordered out. You are not invited in the place and don't start anything in here.”

Two or three of the guests then went up to appellant and asked him to go out. Appellant then stepped back and put his hands in his pockets. One of the guests said:

“What is the use of putting your hands in your pocket? You ain't going to butcher anybody.”

They then stepped up to him, took hold of each arm, and said:

“You must go out.”

He jerked loose, put one hand in his hip pocket, took out a 38-caliber revolver, and immediately fired; the powder burning the trouser leg of one of the parties who then had hold of him. The bullet struck George Svastovich, who was about six feet away, entering his right side below his ribs and above his hips, passing through his body, severing his intestines in 14 places, and from which wound he died the following morning. The deceased had just entered the basement and had no knowledge whatever of any quarrel, or of the attempt to remove appellant, prior to the firing of the fatal shot. The gun was taken away from appellant, who was pushed out of the basement door into the yard. The Gary police department was notified, and when the police arrived they found appellant lying down in the yard, which was surrounded by a fence 10 or 12 feet high. Appellant was assisted to his feet, and he walked to the patrol wagon, and when asked why he did the shooting he shrugged his shoulder and refused to answer. The evidence further tended to show that appellant had been drinking intoxicants, but there was no evidence indicating that he did not realize what he was doing or had done.

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 understandingly; 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 interpreter, he was not able to make his attorney fully understand his position. Appellant says that he advised his attorney that he was drunk at the time of the alleged shooting and had no recollection of all that transpired; that on his first visit at the wedding party he was with a man acquainted with the Croatians there and was served with intoxicating drinks and wanted to pay for them, but was told not to pay, but to come back in the evening for dinner; that he left and visited other places and had wine and liquors, and in the evening, on invitation, returned with no intention of making or having any trouble, but on account of his drunkenness he could not give his attorney all the facts regarding his movements or how he came in possession of the revolver, but denied any intention of shooting the deceased or any other persons. As he had been furnished an attorney, he supposed that a full investigation of his case would be had before trial, and that all the facts and truth would be submitted to the court and jury; that to his surprise the witnesses introduced by the state made it appear that he was not very drunk, that he was not invited back on a second visit, and that he made the statements attributed to him at the time of the shooting. He did not know that his attorney had not investigated his case prior to the trial, or the facts which he had told his attorney, until his attorney made the statement to the jury that he had fulfilled his duty in having facts as the state might adduce them, or as his attorney might adduce from the state's witnesses, without making or causing to be made prior to the trial an independent investigation of his case; that on the advice of his attorney he did not take the witness stand and supposed that was the proper practice; that, if the full facts in the case had been brought to the attention of the jury, a reasonable doubt as to whether or not defendant purposely and with premeditated malice murdered the deceased would have been produced on the minds of the jurors.

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...