Mislik v. State

• Decision Date: 09 December 1915
• Docket Number: 22,781
• Citation: 110 N.E. 551,184 Ind. 72
• Parties: Mislik v. State of Indiana
• Court: Indiana Supreme Court

110 N.E. 551

184 Ind. 72

Mislik v. State of Indiana

No. 22,781

Supreme Court of Indiana

December 9, 1915

From Lake Superior Court; Virgil S. Reiter, Judge.

Prosecution by the State of Indiana against Joe Mislik. From a judgment of conviction, the defendant appeals.

Reversed.

Walter J. Lotz and Charles R. Macnab, for appellant.

Richard M. Milburn, Attorney-General, James A. Patterson, Horace M Kean, Leslie R. Naftzger, Omer S. Jackson, Michael A. Sweeney and Wilbur T. Gruber, for the State.

OPINION

Morris, C. J.

On February 11, 1915, an affidavit was filed in the Lake Superior Court charging appellant, Gustave Dobosky (see Dobosky v. State [1915], 183 Ind. 488, 109 N.E. 742), Andy Olim and five others with the larceny of meat, worth more than $ 100, the property of the Chicago and Erie Railroad Company. The record shows that on the same day the defendants entered a plea of guilty and appellant was adjudged guilty of the crime of grand larceny and his punishment fixed at imprisonment in the Jeffersonville reformatory for a period of one to fourteen years. On the following day he secured counsel, and through them notified the prosecuting attorney that he would forth with file a verified petition to vacate the judgment and withdraw his plea of guilty. This motion was promptly filed and avers, among other things, that on February 10, 1915 appellant was employed by the Standard Steel Company and was living in one of its houses in Hammond; that about midnight of said day he was arrested and taken from his home to the Hammond city jail and held there without opportunity to consult his wife and relatives; that he is of foreign birth, with little knowledge of the English language; that he did not know that he had a right to trial by jury, and to be represented by counsel and was not so informed; that at the hearing he was unrepresented; that through the efforts of police officers a plea of guilty was entered in the cause; that he did not then know the nature or consequences of a plea of guilty; that he was never arrested before; that he is innocent of the crime charged. A like petition was filed by said Olim, and the petitions were heard together. The record shows that no warrant was issued for the arrest of appellant. Following the recital of the filing of the affidavit, by the prosecuting attorney, appears the following: "And their bail herein is fixed in the penal sum of $ 1,000 each, and said defendants being in custody and now in open court, each being arraigned, for their plea herein say that they are each guilty of the commission of the offense charged in the affidavit, to wit, the crime of grand larceny." This entry is followed by the judgment of conviction.

The evidence shows, without contradiction, that on the night of February 10-11, at about 1:30 a. m., appellant was arrested at his residence and taken to the Hammond city jail by George T. Hanlon, police captain, and Joe Smith, a policeman, "accompanied by some of the Erie men and some C. & O. men;" that when arraigned the communication between court and prisoner was through said policeman, Joe Smith, acting as interpreter; that appellant is an Austrian, and speaks the Russian language, and has but slight knowledge of English; that Smith speaks and understands both languages. Peter Austgen, chief of police, of Hammond, was called as a witness by the State. He testified among other things, that early in the morning of February 11, before the filing of the affidavit, he went to the cell where the defendants were confined, and, through the bars, talked to "the whole bunch," without any interpreter. He said, "I asked them what they intended to do, and they told me they would all go up to the court and tell the truth. I don't know which one of them told me. * * * I says 'why did you go out there and steal that stuff?' I says, 'did you go out there and steal because you had nothing to eat?' 'Yes,' they says. I says, 'well, you want to tell the court that also.'" He further testified that he asked them whether they wanted a lawyer, "and they said they had no money;" that he did not ask them where their friends and relatives were. The following question was asked the witness, and the following answer made: "Who asked you to talk with them as to what they should do, as to whether they wanted to plead guilty or not? A. I felt that my business to find out whether they wanted a lawyer or to plead guilty." The witness further testified that he afterwards went back to the cell with the prosecuting attorney. In relation to that visit, the deputy prosecuting attorney propounded the following questions, to which witness made these answers: "Q. I will ask you as to whether or not, when you went back to the cells to talk with them, accompanied by myself, deputy prosecutor, as to whether or not they were asked, whether or not they wanted to plead guilty and whether or not they took this course? A. Yes, sir, you did ask them that. Q. What did they say? A. They said they would all come up here and tell the truth." This witness was of the opinion that appellant understood what witness said.

Joe Smith, the policeman, also testified for the State, on the hearing of this petition. He says that when the defendants were arrested, some of them spoke English; that witness talked to appellant and Olim in Russian, and at the same time the police captain talked to them "in American;" that when app...