Mack v. State

• Decision Date: 21 March 1932
• Docket Number: No. 25879.,25879.
• Citation: 180 N.E. 279,203 Ind. 355
• Parties: MACK v. STATE.
• Court: Indiana Supreme Court

203 Ind. 355

180 N.E. 279

MACK

v.STATE.

No. 25879.

Supreme Court of Indiana.

March 21, 1932.

Appeal from Porter Circuit Court; G. Crumpacker, Judge.

Ulysses Mack, alias Ulysses McNezzer, was convicted of murder during the perpetration of a robbery, and he appeals.

Affirmed.

*N.E.280Frank Williams, of Indianapolis, Geo. L. Hitesman, of Gary, Spencer Adams, of Gary, and French & French, of New York City, for appellant.

James M. Ogden, Atty. Gen., and Harry L. Gause, Asst. Atty. Gen., for the State.

MARTIN, J.

Ulysses Mack, alias McNezzer, the appellant herein, was convicted of murdering, with an axe, during the perpetration of a robbery in Gary, one Josephine Odorizzi, a young woman 20 years of age, and he has been sentenced, under section 4, c. 54, Acts 1929, section 2412, Burns' Ann. St. 1929 Supplement, to suffer death by electrocution.

Appellant was indicted in Lake county March 29, 1929; on April 12, he appeared in person and by counsel in the Lake criminal court, was arraigned, and pleaded not guilty; on May 18, he took a change of venue to Porter county; and on September 26, filed a motion for a continuance. The motion was overruled but the court of its own motion ordered the trial of the cause postponed until October 21, on which date appellant filed a second motion for a continuance, which was overruled. He then asked leave to withdraw his plea of not guilty and to file a plea in abatement (which he submitted to the court) based on the ground that he “was not indicted by a fair and impartial grand jury”; that two members of the grand jury were present and assisted the prosecuting attorney in securing a confession from him, and by reason of that fact were “witnesses for the prosecution.” Leave to withdraw his plea in bar and file a plea in abatement was denied, whereupon he filed a written motion for leave to withdraw his plea of not guilty and to file a motion to quash the indictment on the same general grounds, and this was denied. Thereupon the trial proceeded, he was found guilty of murder in the first degree by a jury, and on November 8, 1929, the death sentence was imposed upon him, which sentence has from time to time been stayed. His motion for a new trial was overruled November 20, 1929.

This appeal was filed (by appellant as a poor person at the expense of the county) and submitted under rule 19 on March 3, 1930, and upon the failure of appellant's attorney to file briefs within 90 days after the date of submission (rule 21) the appeal was dismissed. Later (September 26, 1930) upon a showing made by other attorneys for appellant the appeal was reinstated. Thereafter the new attorneys repeatedly asked for additional time to file briefs, and on June 8, 1931, the court entered the following order: “Appellant's attorney is ordered to file the appellant's brief on or before July 29, 1931 and if he fails to do so the clerk is directed thereupon to dismiss this appeal. Clerk will notify appellant's attorney of this order.” Following the filing of appellant's brief July 28, 1931, appellee's brief December 23, 1931, and appellant's reply brief January 11, 1932, this cause was orally argued on March 11, 1932.

[1] Fourteen alleged errors, most of which arise upon the overruling of appellant's motion for a new trial, are relied upon for reversal. In briefing the case appellant's attorneys have not been accurate in their statement of the record and have argued a number of questions which are insufficiently raised. We have given careful consideration of all such questions however, since we believe, considering the record and the history of this appeal, that there is sufficient reason here, as there was in McCutcheon v. State (1927) 199 Ind. 247, 155 N. E. 544, for so doing. As stated in the case just cited, great care should be taken in reviewing capital convictions before we lend our sanction to the taking of a life, which when taken away we cannot restore, and especially is this so where, in addition to the confession and admissions of the defendant, the corroborating evidence is circumstantial.

The following, briefly, are the facts proved by the state: Josephine Odorizzi, a grocery clerk, age 20, who lived with her mother and stepfather, left her home in Gary at 7 p.m. Sunday, March 17, 1929, to go to the house of Margaret Massa, a girl friend, whom she had promised to visit if her young gentleman friend, Joe Garcia Ray (who also worked at the grocery), did not come to see her that evening. On her person she had a few dollars in money and a gold wrist watch worth about $30. Ray called at Josephine's home about ten minutes after she left, then went to Margaret's house, and then drove his automobile around the neighborhood a while looking for her, and not finding her, went to a dance with some friends.

The dead body of Josephine Odorizzi was found of Tuesday morning lying in a hole in the ground about two blocks from her home. It was lying face up, with all of the clothing pulled up above the stomach. The skull was fractured by three cuts in the back of the head by a sharp instrument. Two teeth had been knocked out, and there were bruises on the eyes, lower jaw, legs and buttocks. A physician who examined the body testified that the vagina was torn three-fourths of an inch on each side of the hymen, the deceased had been raped, and her death was due to shock and hemorrhage, as a result of the fracture of the skull.

The appellant, Ulysses Mack, a negro truck driver, 29 years old, was in a barbecue stand on the Sunday evening Miss Odorizzi was killed. He had a large overcoat on and kept pulling something heavy under the coat up under his left arm. Several witnesses told of him having this heavy object under his coat. He left the barbecue about 7:30 and returned about 10:45. Mack spent considerable time around the railroad yards and posed as a railroad detective. On several occasions he telephoned to the police station and represented himself as Mr. Clifford, who was a special police officer for the Pennsylvania Railroad, and at times called Clifford on the telephone for the purpose of finding out where the railroad officers were. Clifford and Bolden, another police officer, suspecting Mack of being the person who was making the telephone calls, went to Mack's house to investigate. While there the rays of their flash-light fell upon an axe which was under a stove. The axe had blood stains on both sides of its blade. Mack, when questioned by the officers about the blood stains, said he had killed a chicken with it four weeks before. When asked if that was all he had killed with it, he said he had killed a duck with it shortly before that. He then told of splitting kindling with the axe after the killing of the fowls. After the officers demonstrated to him that the splitting of wood would have wiped off the blood. Mack then said that on Monday morning about 2 a.m. the woman who lived with him as his wife had a nose bleed and in the dark walked around the stove trying to find something to bleed her nose in and it bled over the axe. Mack, then being asked how the blood got on both sides of the axe when it was lying flat on the floor, refused to answer further questions. (No evidence was offered as to whether the blood stains were of human or animal blood.)

Later Mack told Bolden that he and his partner, Frank, killed Miss Odorizzi, and Bolden testified at the trial, giving in detail these admissions or confessions. Mack also signed a written confession which was in the form of questions and answers taken down by a stenographer typed and signed. Mack signed by a mark, being illiterate (the only school he ever attended was in the state reformatory where he served a term of imprisonment for vehicle taking). In this confession Mack told of meeting Frank about 7:30 p.m. on March 17, 1929, of their taking an axe with them and avoiding a policeman while walking the streets. In the first part of the confession he stated that Frank hit the girl twice with the axe, but later he stated that he (Mack) hit her first and that “after I hit her and she fell down Frank said hit her again, hit her again, and I said no need of hitting her again and he said you ain't hit her hard enough to kill her, so he jerks the axe out of my hand and just as she fell and hit the sidewalk he hit her again. And I think that was the lick that killed her, because I didn't see her move after I seen him hit her the last time.” Mack explained why he changed his statement as to his having hit the girl, as follows: “I just made up my mind to tell the truth because I were that far into it. If I tried to stick to what I said at first that I did not hit her, I would be just as deep into it as if I tell the truth.” He told of Frank dragging the girl off the street into the weeds and of his standing watch for about twenty minutes while Frank robbed and raped the body. Mack and Frank left the scene of the crime and stopped on a sand hill where they divided the money taken from the girl; Mack taking $4, and Frank taking $5, the watch, and a ring.

In the course of his confession Mack stated that his original explanation of the blood on the axe was untrue and that “it was not my wife's blood.” He admitted that he had represented himself to be a special agent for the railroad so as to explain his presence in the railroad yards, through which he made frequent trips to get alcohol. He admitted that he had the axe in the pocket of his overcoat at the time he was in the barbecue stand. The confession concluded with a statement that at no time during his imprisonment at the county jail had any police officer mistreated, beaten, or in any other way forced him to make the statement, and that he made the statement of his own free will and without threats or promises of any kind.

[2][3][4] The first error, alleged by appellant, is that the trial court erred in refusing to permit him to withdraw his plea of not guilty and interpose a plea in abatement...