Ponos v. State

• Decision Date: 10 July 1962
• Docket Number: No. 30094,30094
• Citation: 243 Ind. 411,184 N.E.2d 10
• Parties: James T. PONOS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 10

184 N.E.2d 10

243 Ind. 411

James T. PONOS, Appellant, v. STATE of Indiana, Appellee.

No. 30094.

Supreme Court of Indiana.

July 10, 1962.

John N. Stanton, East Chicago, for appellant.

Edwin K. Steers, Atty., Gen., Patrick D. Sullivan, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

^*This is an appeal from a conviction of the crime of assault and battery with intent to commit voluntary manslaughter. The appellant states that the 'sole proposition in this appeal is that the evidence in this cause, without conflict or material facts, is not sufficient to establish appellant's guilt of the crime of which he was convicted beyond a reasonable doubt, but that it was necessary for the trial court to pile inference upon inference and presumption upon presumption * * *.'

The facts briefly are that the appellant, while attending a wedding party, became engaged in a dispute of minor proportions with another wedding guest; that the appellant left the premises following the dispute and went to his home where he picked up a deadly weapon, a shotgun, and he then drove back to the scene of the wedding party and from his moving car as he passed the front door, fired both barrels of the loaded shotgun at the house in which he knew persons to be, including the man with whom he had had the argument. At the moment the shots were fired, George Condes (not the person with whom he had quarreled) was leaving the party from the front door onto a well-lighted porch and was struck and wounded by the blasts from both barrels of the shotgun.

The evidence shows that there were two large fir trees about as high as the house on each side of the front walk, and it is claimed this prevented the appellant from seeing the front door and George Condes. This is a question of fact to be determined from testimony and from photographs introduced from which the judge might have drawn a contrary conclusion considering the speed of the car and other surrounding circumstances. Appellant admitted that he was resentful and that he fired the shots because he was angry and wanted to scare persons at the party. The appellant insists that he had no criminal intent sufficient to constitute that necessary in voluntary manslaughter. The controlling factor here is the existence of 'sudden heat' as distinguished from premeditated malice, which is a necessary element in a murder conviction.

In Walker v. State (1956), 8 Ind. 290, 292, this court stated:

'If from the battery committed by the defendant, death had ensued, the evidence in the record would, no doubt, be sufficient to have sustained a prosecution against him for the murder of Anderson. The intent to commit such felony would have been inferred from his act of shooting into the crowd; because every man is supposed to intend the necessary consequences of his own acts. But here, death has not ensued; still, however, the act of shooting produces the same evidence of an intent to murder, as though death had ensued. The defendant having committed a battery on Anderson, with a weapon likely to cause death, the jury were, in our opinion, fully authorized, in view of all the evidence, to find the intent as charged in the indictment * * *.'

To the same effect see: Kunkle v. The State (1869), 32 Ind. 220; Petillo v. State (1950), 228 Ind. 97, 89 N.E.2d 623; Voght v. The State (1896), 145 Ind. 12, 43 N.E. 1049.

This court will not examine the record to determine whether or not the evidence sustains defendant's construction of the evidence in favor of his innocence. It will only consider whether or not the evidence is sufficient for the jury or court to form a basis for its finding of guilty. The citation of Thacker v. Commonwealth (1922), 134 Va. 767, 114 S.E. 504 to the effect that 'the law does not presume, because an assault was made with a weapon likely to produce death, that it was an assault with the intent to murder' is not the law as established in Indiana. In this case the evidence is uncontradicted that the appellant was angry and resentful; that he used a deadly weapon and that he fired it at a point where one might reasonably anticipate persons to be gathered. The court had the right logically and reasonably to draw the inference that he intended the probable consequences of his act to injure someone and that it was done in 'sudden heat.' Madison v. State (1955), 234 Ind. 517, 130 N.E.2d 35.

The appellant finally contends that the court, in making its finding and sentence took into consideration the pre-commitment investigation and report. Although the record shows that the report was filed prior to the finding by the court that the defendant was guilty and prior to sentence, the record does not show that the appellant made any objection thereto, but stood by silently. Error cannot be claimed on appeal if no objection is made thereto at the proper time in the trial court and no specification with respect thereto is made in the motion for a new trial. 8 I.L.E. Criminal Law § 373 p. 424.

The judgment of the trial court is affirmed.

LANDIS and ACHOR, JJ., concur.

JACKSON, J., dissents with opinion in which BOBBITT, J., concurs.

JACKSON, Judge (dissenting).

I dissent from the majority opinion herein.

On December 9, 1960, this cause was submitted to the court for trial, all evidence was heard, and the cause was continued for finding and judgment until December 16, 1960 (pending the submission and consideration of the report of the precommitment investigation).

On December 16, 1960, the court made and entered its finding and judgment, which in pertinent part reads as follows:

'* * * [A]nd comes also Hon. Max Goldsmith, Special Judge, in open court, and the report of the pre-commitment investigation is now submitted, and considered by the Court, and the Court now finds that the defendant is guilty as charged; that he is twenty years of age; that he be sentenced to be committed to the custody of the Board of Trustees of the Indiana Reformatory to be confined by them according to law for a period of not less than two nor more than fourteen years from this date, and that he pay the costs of this prosecution.

'It is therefore considered, adjudged and decreed by the Court that the defendant, James T. Ponos, for the offense by him committed, to-wit: Assault and Battery With Intent to Kill, be and he is hereby committed to the custody of the Board of Trustees of the Indiana Reformatory to be confined by them according to law for a period of not less than two nor more than fourteen years from this date, * * *.'

The factual situation in this cause, disclosed by the evidence was as follows:

On Sunday, June 12, 1960, Aphrodite Karras was married to Steve Stavros at the St. Demetrios Greek Orthodox Church in Hammond, Indiana; after the church services, an afternoon and evening reception for the relatives and friends of the bridal couple was held at St. Michael's Ukrainian Hall on Columbia Avenue in Hammond, which lasted until about midnight; after the general reception at the hall another reception was held for more intimate and specially invited friends of the bridal pair at the home of the bride's mother, Mrs. Catherine Karras, at 7104 Jackson Street, in Hammond, which began around midnight and continued for some time thereafter; there were about thirty-five or forty people at the reception in the Karras home, divided generally with the older people upstairs in the living quarters on the first floor and the younger people in the basement or recreation room where there was music, dancing and some refreshments of different kinds of beverages.

Amongst other people at this latter party were a Mr. and Mrs. George Condes, Leo F. Sarivales and his 14 year old daughter, Irene, and the appellant, James T. Ponos, at that time 19 years of age. Appellant Ponos and his mother and father had been among the invited guests at the church wedding and had been invited to the reception at the hall, but only Ponos himself went to the hall reception, at which place he was invited by Mrs. Karras, the bride's mother, to come to the house reception later, which he did. During the course of the day appellant had had about half a dozen 'highballs' at the reception at St Michael's Ukrainian Hall, and some 'either beer or highballs' later at the Karras home. Appellant Ponos was not previously acquainted with Mr. and Mrs. Condes, nor with Mr. Sarivales or his daughter, Irene.

About 1:15 or 1:13 a. m. at the party in the Karras home in the basement recreation room Mr. Sarivales was talking to his daughter, who was sitting down, when the appellant came up, took the daughter's hand, and suggested dancing; the daughter rose in response, but Mr. Sarivales announced that he was talking to his daughter and there would be no dancing at that time; appellant argued 'let her decide for herself,' but the father ordered the daughter to sit down, which she did. The father had taken hold of appellant by his shoulder to talk to him, but appellant shook him off and left the Karras house and went to his home.

At some time between 2:00 and 2:30 in the morning the guests, George Condes and his wife, Mary Condes, decided to leave the party and go home; as they were coming out the front door of the Karras house, onto the stoop, and while the screen door was still in the act of swinging shut again, the Condes heard an 'explosion' and both Mr. and Mrs. Condes were hit by multiple shotgun pellets. They did not see who did the shooting, nor did anyone else.

The Hammond police got to the home of the appellant about half an hour after the shooting; during questioning he first denied, then admitted, that he had done the shooting; that as he was driving past the Karras house he pulled the trigger discharging both barrels at one time; that he had no intention of hurting anyone, that he had fired at the house, not at any people; that he felt the world was mad at him and disliked him and he wanted to take it out on...