Kallas v. State

• Decision Date: 04 February 1949
• Docket Number: No. 28469.,28469.
• Citation: 83 N.E.2d 769,227 Ind. 103
• Parties: KALLAS v. STATE.
• Court: Indiana Supreme Court

227 Ind. 103
83 N.E.2d 769

KALLAS
v.
STATE.

No. 28469.

Supreme Court of Indiana.

Feb. 4, 1949.

Thomas Kallas was convicted of murder in the first degree, and he appeals, and the State moves to dismiss the appeal.

Motion to dismiss appeal denied, and judgment affirmed.

[83 N.E.2d 770]

Appeal from Criminal Court, Lake County; William J. Murray, judge.
Robert G. Estill, of East Chicago (George Cohan, of Gary, of counsel), for appellant.

Cleon H. Foust, Atty. Gen., and Frank E. Coughlin, First Deputy Atty. Gen. and Merl M. Wall, Deputy Atty. Gen., of Indianapolis, for appellee.

EMMERT, Judge.

This is an appeal from a judgment of conviction upon the verdict of the jury finding appellant guilty of murder in the first degree and fixing his penalty at death.

On the 12th day of September, 1947, the grand jury of Lake County returned an indictment against Thomas Kallas, charging him with the first degree

[83 N.E.2d 771]

murder of George Stocks on the 3rd day of September, 1947 by cutting and stabbing him to death. The appellant was represented by competent counsel before the arraignment, during all the proceedings in the trial court and on this appeal. On February 10, 1948, which was within the statutory time for filing a motion for new trial, the appellant filed a motion for new trial, and at the same time requested the court for additional time to file an amended motion for new trial ‘after the completion of the transcript of the evidence of this case by the court reporter.’ Thereupon the trial court granted the defendant an additional sixty days in which to file an amended motion for new trial. Thereafter on April 19, 1948, appellant filed an additional motion for new trial specifically assigning certain errors occurring at the time of the vior dire examination of the jury and on the trial of the case. On May 26, 1948, after argument by counsel, the trial court overruled appellant's amended motion for a new trial. The original transcript did not show the court ever made any ruling upon the original motion for a new trial filed February 10, 1948, and the state filed a motion to dismiss this appeal for the reason the same was not perfected ‘within 90 days from the date of the judgment or the ruling on the motion for a new trial’ as required by Rule 2–2 of this court.¹ However, the majority of the court was of the opinion that the provision that ‘No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues * * *’ of Rule 2–3 should apply. Therefore, this court retained jurisdiction of the appeal, and ordered the trial court to rule upon the original motion for new trial filed February 10, 1948, with leave to the appellant to file a supplemental assignment of errors. The trial court overruled this motion for a new trial, which record has been certified to this court, and the appellant has now filed a supplemental assignment of errors thus placing this appeal ready for final disposition. There is no merit in the motion to dismiss the appeal and it is now denied. The record does not disclose upon what representation, apparently oral, the trial court granted additional time to file an amended motion for new trial. But from the order book entry we are led to believe that it was done as a matter of convenience for counsel so that the full transcript of the evidence would be completed before the motion was prepared. This is not a sufficient cause for entertaining a motion for new trial which is not filed within thirty (30) days from the date of the verdict, as required by § 9–1903, Burns' 1942 Replacement. There is no showing of any fraud perpetrated upon the court or upon the appellant which was later discovered, or that there was newly discovered evidence after the time had lapsed, or that the appellant had been denied his constitutional rights before or during the trial, which might necessitate the relaxation of the time limitation for filing a motion for new trial. However, since this is an appeal from a death sentence, we shall consider the errors alleged in appellant's briefs to see that substantial justice has not been denied him, although this court may not be bound to do so in view of the failure in certain instances to comply with well recognized rules for the determination of appeals. See Thompson v. State, 1946, 224 Ind. 290, 293, 66 N.E.2d 597;Hicks v. State, 1938, 213 Ind. 277, 302, 11 N.E.2d 171,12 N.E.2d 501;Brown v. State, 1934, 206 Ind. 223, 189 N.E. 133;Mack v. State, 1932, 203 Ind. 355, 361, 362, 180 N.E. 279, 83 A.L.R. 1349;McCutcheon v. State, 1927, 199 Ind. 247, 251, 155 N.E. 544;Marshall v. State, Ind.Sup. 1949, 83 N.E.2d 763.

Upon appeal after a conviction, only the evidence most favorable to the state, and all reasonable and logical inferences that may be drawn therefrom, will be considered by this court, and this rule applies in appeals in capital cases.

[83 N.E.2d 772]

Keith v. State, 1905, 157 Ind. 376, 61 N.E. 716;Badgley v. State, Ind.Sup., 1949, 82 N.E.2d 841.

From an examination of the evidence it appears that the facts involved in this crime were as follows:

The appellant, Thomas Kallas, age 57 years, was a homosexual pervert. The evening of September 3, 1947, the decedent was in a tavern of a hotel in East Chicago, Indiana. Thomas Kallas, who had a room in this hotel, also came into the tavern, and in a short time took a seat by the decedent and engaged him in conversation. The appellant bought the decedent another beer and another drink of whiskey for himself. After remaining there 15 or 20 minutes, appellant invited the decedent to go to his room for some more drinks.

Ten or fifteen minutes later in the evening decedent was found in front of the door of the appellant's room in a pool of blood, dead as the result of seven wounds inflicted by appellant with a four and one-half inch blade hunting knife. The room lights were out at the time the body was discovered. The appellant had purchased the knife some months before, and kept it in a dresser drawer, but when the police entered the sheath was on top of the dresser and the knife was under the pillow on the bed. The decedent's clothes were all on, with the exception of one shoe which was under the bed. When the police officers arrived the appellant was in a half dazed condition lying on the bed wearing only pajama trousers. He had been drinking although he was not intoxicated, and an empty whiskey bottle was resting on the dresser together with some paraphernalia prepared for use by the appellant for his unnatural perversion.

That same night immediately following the killing, to various witnesses the appellant said, ‘I killed him and I would kill eight more like him;’ ‘I killed the s$05R o$05R a b$05R and I would do it again.’ ‘I killed a dog;’ ‘I killed the b$05Rd, I killed him.’ In explanation for his actions appellant said, ‘He hit me and wants to rob me,’ but the next day he said he didn't know the boy he had killed and had never seen him before; that some strange person rushed into his door and demanded his money. But when confronted with the bartender of the hotel tavern he admitted that he had met the decedent in the bar room and ‘went up stairs with him and drank with him.’ There were no bruises or marks of any nature upon appellant to corroborate his story that he was hit by the decedent, and the decedent had $3 on his person when found. The appellant as a witness testified that the decedent had attempted to rob him.

There is nothing else in the evidence that even faintly suggests that the decedent was a thief or a robber or would have been likely to have assaulted the appellant with intent to rob. The evidence introduced without objection showed decedent was 23 years old, 5 feet 10 inches tall and weighed 130 pounds and was unarmed. During the war he was a bombardier with the 8th Air Force and had received the Bronze Medal for bravery. After the war he worked at the Hines Hospital in Illinois, but the sight of many cripples at that institution so worried him that he sought other employment and came to work with his brother for U. S. Gypsum Company in Lake County. He had never been in any trouble in his entire life.

The day before the killing appellant's roommate found him talking to a young man about 16 or 17 years of age calling him many names. He told appellant to let the boy alone, whereupon appellant pulled a small pocket knife and told him if he didn't shut up he would do away with him. The roommate also testified that appellant had shown him the hunting knife several times ‘before he wanted me to do it, and asked me what I thought about’ the knife. There was no evidence that appellant ever went hunting or had used the knife for any proper purpose.

The appellant admitted he killed the decedent, and from the physical facts and evidence as well as appellant's admissions the jury had the right to find that the killing was accomplished purposely and with malice. There need not have been any appreciable space of time between the formation of an intent to kill and the execution of that intention, for as often stated by this court, they may be as instantaneous

[83 N.E.2d 773]

as successive thoughts. Binns v. State, 1879, 66 Ind. 428;Koerner v. State, 1884, 98 Ind. 7;Everett v. State of Indiana, 1935, 208 Ind. 145, 195 N.E. 77;Dundovich v. State, 1921, 190 Ind. 600, 131 N.E. 377. There was sufficient evidence to sustain the charge that the killing was done with premeditated malice.

The appellant by his admissions, and by his testimony at the time of the trial placed in issue his intention in doing the act, and made the claim that it was done in self defense. The state was not bound to prove motive. Brattain v. State, 1945, 223 Ind. 489, 61 N.E.2d 462. But circumstantial evidence by the state on the question of...