Lamick v. State

• Decision Date: 01 April 1925
• Docket Number: No. 24786.,24786.
• Citation: Lamick v. State , 196 Ind. 71, 147 N.E. 139 (Ind. 1925)
• Parties: LAMICK v. STATE.
• Court: Indiana Supreme Court

196 Ind. 71

147 N.E. 139

LAMICK

v.STATE.

No. 24786.

Supreme Court of Indiana.

April 1, 1925.

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

Nick Lamick was convicted of unlawfully possessing a still and distilling apparatus for the manufacture of intoxicating liquor, and he appeals. Affirmed.

Hoy D. Davis, of Gary, and August A. Bremer, of Crown Point, for appellant.

U. S. Lesh, Atty. Gen., for the State.

GEMMILL, J.

This is an appeal from the Lake criminal court where appellant was prosecuted upon an affidavit in which he was charged with the unlawful possession of a still and distilling apparatus for the manufacture of intoxicating liquor. On May 2, 1924, he appeared in court, and by his counsel waived arraignment and pleaded guilty. The court rendered judgment on his plea and sentenced him to imprisonment in the state prison for not less than one year nor more than five years.

Thereafter, on May 23, 1924, appellant, by other counsel, filed a motion supported by his affidavit, asking that the judgment of conviction upon his plea of guilty be set aside, that he be permitted to withdraw his plea of guilty and enter a plea of not guilty. The prosecuting attorney of Lake county appeared in opposition to appellant's motion and filed three counter affidavits. The court overruled appellant's motion and such action is assigned as error upon appeal; same being stated by appellant in three separate assignments, as follows:

“(1) The court erred in refusing to grant the prayer of the appellant in his motion supported by affidavit to set aside the judgment of conviction of the appellant on his plea of guilty, and that he be permitted to enter a plea of not guilty. (2) The court erred in refusing to set aside the judgment of conviction. (3) The court erred in overruling appellant's motion supported by affidavit for permission to withdraw his plea of guilty.”

The affidavit of appellant in support of his motion states that he is a Servian by birth and is not familiar with the English language; and that no one, either the court or the attorney who represented him, ever at any time informed him that under the bill of rights guaranteed by the Constitution of the state of Indiana article 1, § 20, he had the right of trial by jury; and that by reason of the fact that he had not been furnished with an interpreter to explain to him his rights, he was thereby deprived of his right to have a jury trial; that he was led to believe and it was represented to him by his attorney that he would receive only a slight sentence of from one to six months; that he was not informed of the seriousness of the charge against him; that he had never been in court before, did not know the true meaning and result of pleading guilty, and only did so believing that his sentence would be a light jail sentence of one to six months.

The counter affidavit of James A. Sweeney shows that he had been in the practice of law for 14 years; that he appeared in the Lake criminal court on May 2, 1924, as attorney for Nick Lamick, having been employed by him and his brother-in-law, whom he had previously represented in said court; that he obtained the release of the defendant from jail; that he explained to the defendant and his brother-in-law the seriousness of the offense with which the former stood charged; that he had several consultations with defendant and conversed with him in the English language; that no necessity for an interpreter appeared and none was requested or brought; that he went to defendant's home where the defendant pointed out to him the scene of illegal operations; that affiant explained to him the law concerning the offense with which he stood charged and the penalty prescribed for same; that he explained to him his right to a trial by jury and that they conferred concerning the advisability of same; that defendant did not wish a jury trial for the reason that he felt he would be found guilty and could not then appeal to the court for leniency; that defendant hoped to get a suspended sentence, and instructed his attorney to enter a plea of guilty, well knowing that the court must pass sentence of one to five years imprisonment; and that after sentence was passed defendant attempted to employ him to take an appeal to the Supreme Court for the sole purpose of delay; and that he refused to accept such employment.

The counter affidavit of Harold E. Stiles shows that he was an attorney at law of Gary; that he had been acquainted with James A. Sweeney for many years; that on or about April 10, 1924, he accompanied Sweeney and a gentleman introduced...