Sanchez v. State

• Decision Date: 08 June 1927
• Docket Number: 25,155
• Citation: 157 N.E. 1,199 Ind. 235
• Parties: Sanchez v. State of Indiana
• Court: Indiana Supreme Court

157 N.E. 1

199 Ind. 235

Sanchez v. State of Indiana

No. 25,155

Supreme Court of Indiana

June 8, 1927

1. CRIMINAL LAW.---Rule as to granting new trial for newly-discovered evidence.---To warrant the granting of a new trial for newly-discovered evidence (cl. 8, 2325 Burns 1926) it must appear that the evidence has been discovered since the trial, that it could not have been discovered before the trial, that it is material and would likely change the result and that it is not merely cumulative or impeaching. p. 240.

2. CRIMINAL LAW.---Cumulative or impeaching newly-discovered evidence may sometimes be considered.---The fact that newly-discovered evidence is cumulative or impeaching will not prevent its consideration on some point as to which it is not cumulative or impeaching. p. 240.

3. CRIMINAL LAW.---Evidence of a different kind is not cumulative.---Newly-discovered evidence which tends to establish the same point as other evidence but is different in kind is not cumulative. p. 240.

4 HOMICIDE.---Newly-discovered evidence of conduct of deceased and companions in pool-room relative to defendant just before killing held not cumulative or impeaching.---In a motion for a new trial because of newly-discovered evidence by one convicted of murder by shooting, new evidence to the effect that, immediately before the shooting, affiant saw the defendant in a pool-room attempting to get change for paper money which he held in his hand, that he saw a group of men including the deceased, talking together in a low tone of voice and pointing at defendant, that they went out of the pool-room ahead of him and attempted to surround him and engage him in a quarrel, and that, before the shooting, he heard a scuffle and a blow, was not cumulative or impeaching p. 240.

5. HOMICIDE.---Newly-discovered evidence as to defendant's reputation for peace and quietude and general moral character held material in motion for new trial by one convicted of murder by shooting.---In a motion for a new trial because of newly-discovered evidence by one convicted of murder by shooting, proposed testimony of newly-discovered witnesses as to the defendant's general moral character and his reputation for peace and quietude would be material when taken in connection with defendant's testimony as to what happened when the deceased was killed. p. 241.

6. HOMICIDE.---Newly-discovered evidence held to be such as would probably produce a different result on another trial of a charge of murder by shooting. p. 241.

7. CRIMINAL LAW.---Diligence in discovering evidence before trial, how determined.---In an application for a new trial on the ground of newly-discovered evidence, in determining whether due diligence was used to discover such evidence before trial, each case must be governed by the circumstances surrounding it. p. 241.

8. CRIMINAL LAW.---Accused cannot be charged with lack of diligence in discovering evidence when he had no knowledge of its existence.---One seeking a new trial for newly-discovered evidence cannot be accused of lack of diligence to discover it before trial when he possessed no means of knowing that the evidence subsequently discovered was in existence. p. 241.

9. HOMICIDE.---Refusal of new trial for newly-discovered evidence held reversible error.---Where a defendant was convicted of murder in the first degree and sentenced to death, the refusal of a new trial because of newly-discovered evidence which would probably change the result was reversible error where the defendant was a foreigner eighteen years of age, without knowledge of his legal rights, and relied on an incompetent attorney to secure evidence to establish his defense, which the attorney failed to secure, and defendant was confined in jail from the time the homicide was committed. p. 241.

10. CRIMINAL LAW.---The granting of a new trial for newly-discovered evidence is in the legal discretion of the court. p. 241.

11. CRIMINAL LAW.---Verified statements in motion for new trial must be accepted as correct when not contradicted nor discredited.---Verified statements in a motion for a new trial, though made on information and belief, must be accepted as correct when neither contradicted nor discredited, especially if corroborated. p. 242.

12. CRIMINAL LAW.---Poor defense will not alone justify reversal of conviction.---The fact that an accused was poorly defended will not alone justify the reversal of a judgment of conviction where it is reasonably supported by satisfactory evidence, but such fact may be considered when it is obvious that his rights were not properly protected during the trial. p. 245.

13. CRIMINAL LAW.---Ignorant foreign boy accused of murder in first degree, defended by incompetent attorney, who failed to have witnesses in defendant's behalf, held not to have had fair and impartial trial as guaranteed by Constitution.---Where the defendant, an eighteen year old Mexican boy, was charged with murder in the first degree, and, being ignorant of the English language and of his legal rights, employed an incompetent attorney to defend him, who had tendered his services and who was without experience in the trial of criminal cases and was not informed of the rules of evidence and that witnesses could be compelled to attend trial and testify without the prepayment of their fees, for which reason, he failed to make proper investigation as to evidence favorable to accused and to have his witnesses in court for trial, and who made no objection to an interpreter who was a friend and companion of the deceased, held that he had not had a fair and impartial trial as guaranteed by the Constitution, Art. 1, 13 (65 Burns 1926). p. 246.

From Porter Circuit Court; H. H. Loring, Judge.

Vito Sanchez was convicted of murder in the first degree and sentenced to death, from which he appeals.

Reversed.

Russel B. Harrison, Daniel E. Kelly and Edward J. Ryan, for appellant.

Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.

OPINION

Gemmill, J.

The appellant was indicted by the grand jury of Lake county for murder in the first degree. The indictment charged that he unlawfully, feloniously, purposely and with premeditated malice killed and murdered one Daniel Grigayen, on March 8, 1925. The cause was sent on change of venue from the criminal court of Lake county to the Porter Circuit Court. In that court, a jury found him guilty as charged and fixed his punishment at death. The court entered judgment accordingly. The attorneys who now represent the appellant did not appear for him at the trial and had no connection with the case until after the rendition of the judgment. His present attorneys filed a motion for a new trial for him. Same was overruled by the court and the ruling thereon has been assigned as error. In the motion and supplemental motion for a new trial, more than seventy causes for same are stated.

The appellant is a citizen of the Republic of Mexico and was eighteen years old when the homicide occurred. Witnesses for the state testified as follows: The appellant went into a pool room at No. 1418 Washington street in the city of Gary, on March 8, 1925, about 7 o'clock in the evening. He went to the counter and asked for change, presenting a twenty-five or fifty cent piece. He did not secure any change. Daniel Grigayen, Daniel Vega and John Churis, all Spaniards, were in the pool room and only a short distance from him when he asked for change. A few minutes later, he started toward the door. Grigayen preceded him and Vega and Churis followed. On the outside, no words were spoken. Appellant began to shoot, shot five or six times, and killed Grigayen, who lived in Chicago and who was in Gary to attend a dance at the Spanish lodge room. After the shooting, the appellant ran, but was captured a short distance away by Vega and Churis. Officers said that, when they searched him, they did not find any paper money.

The appellant was a witness in his own behalf and testified: That he was a laborer, working in Gary. He went into the pool room to get change for a twenty-dollar bill. He did not get change for it and then asked change for a half-dollar, which he did not get. He was in the pool room about five minutes. As he left, three men were standing on the outside at the side of the doorway. As he stepped out of the door, a man struck him on the head, knocked him down, went through his pockets and took the twenty dollars. When captured there was a bruised place on his head. At the trial, he exhibited a scar on his head to the jury. His reason for having the revolver in his pocket was that he was going to sell it to a party whom he was to meet at another pool room near there. He emptied his revolver, but did not know whether he shot anybody. One of the men shot at him, and his coat had a bullet hole in the sleeve and two bullet holes in the side. His coat showed bullet holes.

It is contended that appellant was entitled to a new trial, on account of newly-discovered evidence. The affidavit of Jesus Cavisas was made part of the motion for a new trial. Upon oath, he made the following statements: That he boarded in East Chicago, Indiana, was twenty-two years old, could speak the Mexican and Spanish languages, but was not familiar with the American language. That he was no relation and was not acquainted with Vito Sanchez. On the evening of March 8, 1925, he was in the city of Gary, and that while in a pool room at 1418 Washington street in that city, playing pool, Vito Sanchez entered the pool room. He saw Sanchez approach the counter, saw him engage in conversation with the clerk, heard some talk about changing money, which was paper money, which appellant had in his hand. That while so engaged, three men...