Mandich v. State

Decision Date16 April 1946
Docket Number28131.
Citation66 N.E.2d 69,224 Ind. 209
PartiesMANDICH v. STATE.
CourtIndiana Supreme Court

Appeal from Lake Criminal Court; William J. Murray Judge.

Harry Long and Nick Kosanovich, both of Gary, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, 1st Asst. Atty Gen., for appellee.

O'MALLEY Judge.

The appellant was charged with murder in the first degree. There was a trial by a jury and a verdict finding the appellant guilty of murder in the second degree. The error assigned is the overruling of the motion for a new trial. That motion was lengthy and set out sixty-seven claims of error in the trial. Many of these are grouped for the purpose of examination and explanation. Included in the specifications is the claim that the evidence is not sufficient to sustain the verdict.

The evidence most favorable to the appellee discloses that the appellant was the sister-in-law of the victim; that for a number of years she had loaned money to the decedent in order that he and her sister might have sufficient to maintain themselves; that this continued until there was an indebtedness of $735 and none of this had been paid in 1936 when the sister and the decedent purchased a house at 3736 Madison Street, Gary, Indiana; that the appellant complained that she should be repaid without delay, and finally the interest of the decedent and his wife in the Madison Street house was turned over to her with the understanding that title would be transferred back upon the payment of the indebtedness; that in 1940 the decedent and his wife separated and the wife went to live in the home of her first husband; that the decedent continued to live in the front part of the Madison Street house while the rear was being rented; and that at the time of the shooting the rear of this house was occupied by a Mrs. Parker and her two small children.

The evidence further discloses that the appellant was receiving no return on either the principal or interest of her investment in the house; that she tried to have the decedent evicted but did not seem to be able to do so, and finally that she went to the home where her sister was living and proposed that they both go to the Madison Street property and take possession thereof and throw out the furnishings which belonged to the decedent; that they did go to the house and gained entrance through the rear part; that they immediately began to move the decedent's furniture onto the front porch; that before the furniture was completely moved, the sister of the appellant left to go back to her home in order to prepare and serve a meal to her young son and to her first husband; that after the sister had gone, the decedent came to the Madison Street house and presented himself at the door thereof; that while he was standing at the door words passed between him and the appellant; that she then told him that she was the boss and that he could not enter; that he shook the storm door and attempted to enter and at that time the glass in the door was broken and the neighbors, including Mrs. Parker, heard the crash of glass and a second crash which sounded like the backfiring of an automobile.

From the evidence the jury also must have believed that when Mike Ulemek, the decedent, came down the street and went upon the porch of his home and approached the front door, the appellant came and stood in that doorway and in a short time the decedent fell to the porch floor; that the appellant slammed the door, tried to pull down the shade and then disappeared from the doorway and Mike Ulemek did not get up.

The evidence further showed that Ulemek had been shot through the heart; that the bullet entered at a lower corner of the breast bone and went into the heart, and down through the diaphragm into the abdomen; that the glass in the storm door was broken from the inside; that Mrs. Mandich left this house by the back way and went to the home of her sister and finally to her own home. There was evidence that she had threatened to kill the decedent if he did not get out of her house; and that no other person entered or left the Ulemek home by way of the front door. There was evidence of the two crashes while the appellant was in the front of the house. She was identified as the person in front of him at the time he fell backward on the porch with a bullet through his heart. It could have been inferred that no other person was near; that the appellant was at the front door and very close to the decedent at the time he was shot; and that the shot came from a revolver in the hands of the appellant.

The appellant makes much of the facts that the gun was never found and that no direct evidence was offered to show that the appellant had ever owned or possessed a weapon of the calibre used in the shooting. The appellant also asks us to examine the evidence to determine whether or not it overcomes every hypothesis consistent with the innocence of the appellant.

In the trial court the jury and finally the judge must weigh the evidence with that rule in mind, but in this court a different rule applies. Here, if there is evidence of each essential fact in the chain of circumstances, we cannot weigh that evidence.

The case of Osbon v. State, 1938, 213 Ind. 413, 13 N.E.2d 223, on which the appellant relies, is of no assistance. There the court plainly stated that this court will not weigh the evidence, but will reverse when there is no evidence upon which the conviction can stand. The correct rule of law was stated in Dowty v. State, 1932, 203 Ind. 228, 235, 179 N.E. 720, 723, in the following language: 'When the sufficiency of circumstantial evidence is in question, as here, we examine it carefully, not for the purpose of finding whether or not it is adequate to overcome every reasonable hypothesis of innocence, but with the view of deciding whether an inference may be reasonably drawn therefrom tending to support the finding of the trial court.'

In Gears v. State, 1932, 203 Ind. 380, 394, 180 N.E. 585, 590, this court had before it a claim similar to the one in the instant case. In that case comment was made on prior decisions bearing on the method and measure used in this court in evaluating circumstantial evidence. As a part of the explanation of the governing rule this court set out a quotation from Wrassman v. State, 1921, 191 Ind. 399, 132 N.E. 673, which is as follows: "If the language used by Judge Mitchell in the Cavender case [Cavender v. State, 126 Ind. 47, 25 N.E. 875] was intended to convey the impression that where there are two reasonable hypotheses arising from circumstantial evidence, one of which is innocence and the other guilt, that it is the duty of a court of review to draw the inference of innocence, then this language must be disapproved. If it is meant to be a pronouncement of the law which should govern juries and trial courts, then it is approved."

In Finch v. State, 1944, 222 Ind. 633, 638, 56 N.E.2d 851, 853, 854, this court, in commenting on a claim similar to that in the instant case, made this statement: 'It is true that the jury and the trial court must be guided by the rule that to sustain a conviction circumstantial evidence must be such as to exclude every reasonable hypothesis of innocence. This rule has no application upon appeal. The jury is the sole judge as to whether an explanation of the circumstances upon some other theory than that of guilt is sufficiently strong to raise a reasonable doubt of guilt.'

The evidence, though circumstantial, together with the inferences which can be drawn therefrom are sufficient to support the verdict.

Complaint is made that the court should have given instructions numbered 11 and 20 tendered by the appellant. The court gave its own instruction number 18 which covered every element contained in the two instructions referred to above. No error was committed in refusing to give instructions 11 and 20 tendered by the defendant in the trial court.

Appellant's tendered instruction number 23 stated that...

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