Krivanek v. State, 767
| Decision Date | 19 May 1969 |
| Docket Number | No. 767,767 |
| Citation | 247 N.E.2d 505,17 Ind. Dec. 489,252 Ind. 277 |
| Parties | Richard Arthur KRIVANEK, Appellant, v. STATE of Indiana, Appellee. S 47. |
| Court | Indiana Supreme Court |
Sam Mirkin, South Bend, for appellant.
John J. Dillon, Atty. Gen. of Indiana, Murray West, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was during the September Term, 1966, of the St. Joseph Circuit Court, charged by indictment filed therein with the crime of Murder in the First Degree. Such indictment was filed September 15, 1966, a warrant for the arrest of appellant on such charge was ordered issued to the Sheriff of that county. On the same day appellant, in the custody of the Sheriff appeared in open court, with counsel, and requested that arraignment on the charge be continued until September 16, 1966; the request for the continuance was granted.
On September 16, 1966 appellant, with counsel, appeared and, before arraignment, filed a Motion to Quash the Indictment.
The indictment herein, omitting formal parts and names of witnesses, reads as follows:
'STATE OF INDIANA
VS
RICHARD ARTHUR KRIVANEK
The Grand Jurors of the St. Joseph County Circuit Court for the September Term, 1966, A.D., in and for the County of St. Joseph, State of Indiana, upon their oath do present:
That on or about the 20th day of August, 1966, at and in the County of St. Joseph, State of Indiana, one RICHARD ARTHUR KRIVANEK, purposely and with premeditated malice, did kill a human being, to-wit: JANET JOAN KRIVANEK, who was then and there at 607 North Michigan Street, in the City of South Bend, County and State aforesaid, he, the said RICHARD ARTHUR KRIVANEK, then and there purposely and with premediated malice, striking at and against the person and body of the said JANET JOAN KRIVANEK with a certain knife then and there had and held in his hands, then and there and thereby inflicting upon the person and body of said JANET JOAN KRIVANEK a mortal wound, and that as a proximate result of said wound, the said JANET JOAN KRIVANEK did then and there die, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.
/s/ Thomas J. Roemer
Thomas J. Roemer
Prosecuting Attorney
Warrant ordered issued.
/s/ Joseph W. Nyikos
The Motion to Quash, omitting heading and signature, in pertinent part reads as follows:
'Comes now the Accused, Richard Arthur Krivanek, and moves the Court to quash the Indictment herein on the following grounds:
1. The facts stated in said Indictment do not constitute a public offense.
2. Said Indictment does not state the offense charged with sufficient certainty.'
The above motion was submitted without argument on September 16, 1966, was at once overruled and appellant, at his request, was formally arraigned, following which he entered a plea of 'Not guilty' and then filed an affidavit for a change of venue from the judge.
The ruling on the affidavit for change of venue from the judge reads as follows:
'And now defendant's affidavit for change of venue from the Judge being found sufficient, the Court grants the same.
The Court is now informed that the attorneys cannot agree on a special Judge to try this cause.
The Court now nominates the Hon. E. Spencer Walton, Hon. Norman Kopec as a panel from which the parties may strike.
And now the defendant strikes the name of Judge Kopec.
And now the State of Indiana strikes the name of Judge Dempsey, leaving Judge Walton, who is now by the Court appointed Special Judge to try this case.
And now by agreement, this cause is ordered transferred to the St. Joseph Superior Court, Hon. E. Spencer Walton presiding.
And now defendant is remanded into the custody of the Sheriff.
The above and foregoing record in Cause No. Cr. 14363, State of Indiana vs Richard Arthur Krivanek, was submitted to the presiding Judge, the Hon. Joseph W. Nyikos, upon arraignment of said Defendant, and said Judge having read the same now certifies it as a true and complete record of the proceedings had in this cause on this date. The Court now orders the same made a part of the record in this cause and orders it made a part of the order book entry by the Clerk.
Dated this 16th day of September, A.D. 1966.
JOSEPH W. NYIKOS
Thereafter the cause was tried by a jury which found appellant guilty of murder in the first degree. The verdict of the jury reads as follows, to-wit:
'We, the Jury, find the defendant, Richard Arthur Krivanek, Guilty as charged in the indictment of the crime of Murder in the First Degree. We further find that his true age is 33 years.
On the 16th day of February, 1967, at the conclusion of presentation of the State's evidence and after the State rested appellant filed a motion for a directed verdict. The record, transcript p. 74, reads as follows:
'And now the defendant files motion for a directed verdict as to Murder in the First Degree, which motion reads in the words and figures following, to wit: (HI)
And now outside of the presence of the jury, hearing is had on defendant's motion for a directed verdict.
And now the Court overrules said motion.'
The court set February 27, 1967, for disposition on the pre-sentence investigation. On that date after consideration of such report the court imposed sentence on appellant. Such judgment in pertinent part reads as follows:
'And now the Court upon finding the true age of the defendant to be 33 years of age and pursuant to the verdict of the jury, finds the defendant Guilty as charged of Murder in the First Degree and sentences the defendant to the custody and control of the warden of the Indiana State Prison for the rest of his nastural life.
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that pursuant to the Verdict of the Jury, that the defendant, Richard Arthur Krivanek, be and hereby is Guilty as charged of Murder in the First Degree, and that he be and hereby is sentenced to the custody and control of the Warden of the Indiana State Prison for the rest of his natural life.
And now the Court orders the Sheriff to carry out the sentence of this Court.'
On March 21, 1967, appellant filed his motion for a new trial, which motion, omitting formal parts, reads as follows, to-wit:
'Comes now the Defendant in the above-entitled cause of action, Richard Arthur Krivanek, and moves the Court to set aside the verdict and judgment thereon and grant a new trial of this action for each of the following reasons:
1. The Jury's verdict is contrary to law.
2. The Jury's verdict is not sustained by the evidence and is contrary to the weight of evidence.
3. The Court erred in denying the Defendant's Motion to have the charge of: Murder in The First Degree withdrawn from the Jury's consideration, made by said Defendant at the conclusion of the State's case.
4. Misconduct of the Jury, in this: Certain extraneous matters and improper evidence were received; interjected into; and considered by the Jury during the course of its deliberations to the prejudice of the Defendant, Richard Arthur Krivanek, all as is made clear by affidavits attached hereto and made a part hereof, and of which Juror misconduct this Defendant, as well as both of his counsel, were completely unaware until after the rendition of the verdict in this cause. Specifically, said prejudicial misconduct of the Jury consisted of:
a) The following statement repeatedly made by Juror, Paul Auman, to Juror, Jane Zimmer, as well as to certain of his other fellow-Jurors, during the course of their deliberations, to-wit:
b) This remark--repeatedly made by Juror, Fred Bock, to Juror, Jane Zimmer, and other of his fellow-Jurors, during the course of their deliberations, to-wit:
c) The argument--repeatedly resorted to by Juror, Frank Soos, in his efforts to sway Juror, Jane Zimmer, as well as certain of his other fellow-jurors, to-wit:
A Juror is--under his oath--duty bound to predicate his verdict solely upon the law and the evidence in the case--and upon absolutely nothing else. When he bases his verdict upon something besides the law and the evidence or persuades his fellow-jurors to do so, he flagrantly violastes his solemn oath as a Juror and is guilty, indeed, of misconduct.
d) The remark by the foreman of the Jury, Robert Towner, to Juror, Jane Zimmer and other of his fellow-jurors, during the course of their deliberations, to-wit: 'Listen, we're too intelligent to go in there as a hung jury.'
e) The promise made by the foreman of the Jury, Robert Towner, to Juror Jane Zimmer and other of his fellow-jurors, during the course of their deliberations, to reveal to them certain vital information concerning the family of the Accused, when he assured them: 'As soon as we come to a verdict, I'll tell you something else about that family (or sister).'
f) The extraneous, extremely prejudicial and highly improper information--information totally inadmissible in evidence--which the foreman of the Jury, Robert Towner, revealed to Juror Jane Zimmer and other of his fellow-jurors, during the course of their deliberations, to-wit: 'His sister was involved in a shooting several years ago and someone was shot (or killed).'
The aforementioned remarks made by the foreman of the Jury, Robert Towner, interjected...
To continue reading
Request your trial
-
Randall v. State
...(sic) the verdict since the jury would not have known of the information prior to arriving at its verdict." Krivanek v. State, (1969) 252 Ind. 277, 291, 247 N.E.2d 505, 514; see also Alexander v. State, (1983) Ind., 449 N.E.2d It is apparent here that the bailiff's communication was done af......
-
Waye v. State
...of errors were neither briefed nor argued before this Court, and are, therefore, deemed to have been waived. Krivanek v. State (1969), Ind., 247 N.E.2d 505, 17 Ind. Dec. 489. The appellant was accused of burglarizing a business establishment in downtown Lafayette, Indiana, known as Wagon Wh......
-
Lambert v. State, 668
...by appellant, and, accordingly, is thereby deemed to have been waived. McGill v. State (1969), Ind., 247 N.E.2d 514; Krivanek v. State (1969), Ind., 247 N.E.2d 505; Dombkowski v. State (1967), Ind., 230 N.E.2d 602. That fact being admitted by appellant in his reply Appellant next contends t......
-
Newman v. State, 669S133
...this Court for the reason that appellant failed to argue said specification of error in his brief before this Court. In Krivanek v. State (1969), Ind., 247 N.E.2d 505, we stated 'It is a long standing rule that, on appeal, it is incumbent upon the appellant to affirmatively show harmful err......