State v. Ross

• Decision Date: 07 July 1952
• Parties: , 62 Ohio Law Abs. 562, 49 O.O. 196 STATE v. ROSS.
• Court: Ohio Court of Appeals

Page 29

92 Ohio App. 29

108 N.E.2d 77, 62 Ohio Law Abs. 562, 49 O.O. 196

STATE v. ROSS.

Court of Appeals of Ohio, Cuyahoga County.

July 7, 1952.

Appeal Dismissed Oct. 15, 1952.

Syllabus by the Court.

1. A police officer who, pursuant to the arrest of an individual, accompanies such person to a room where he resides, for the purpose of examining identification material promised by him for the officer's inspection, is in the act of 'perserving the peace' under Sec. 4378, G.C., and is 'in discharge of his duties' within the purview of Sec. 12402-1, G.C., which sets out the elements of the crime of murder in the first degree for purposely and wilfully killing a policeman.

2. In construing the meaning of the terms in a criminal statute, a court is not at liberty to depart from the words employed, but is bound to ascertain the fair meaning of the words in view of the sense in which they are used.

3. To the rule that the State may not prove crimes not alleged in an indictment, as aiding the proof of the crime charged, exceptions to the rule against the admission of such evidence do permit the introduction of the evidence if it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. Sec. 13444-19, G.C., likewise provides for exceptions to the rule.

4. Flight, resistance to arrest, concealment, assumption of false name, criminal conduct during flight for the purpose of financing and accomplishing further flight, are admissible in evidence. While such conduct does not raise a presumption of guilt, the jury may consider the circumstances thereof, together with other facts in evidence, for the purpose of determining whether there was a guilty connection with the crime charged.

5. The law fixes no length of time for deliberation and premeditation under the provisions of Sec. 12400, G.C. It is proper to instruct a jury in words which may be fairly determined to mean that the purpose to kill must coexist with deliberate and premeditated malice, and that when deliberation and premeditation has occurred it matters not how short or how long the time 'if the party has actually turned it over in his mind.' Shoemaker v. State, 12 Ohio 43.

6. Under a plea of not guilty by reason of insanity, the burden of establishing such defense rests upon the defendant by a preponderance of the evidence. When from the evidence reasonable minds may reach different conclusions upon the question of insanity, such question of fact is for the jury. If, however, after giving the evidence the most favorable interpretation in favor of the defendant, reasonable minds can come to but one conclusion and that conclusion adverse to defendant, it is the court's duty to rule on the issue as a matter of law.

7. An irresistible impulse to kill, which an individual who knows the difference between right and wrong carries on to a conclusion with such knowledge, is not such a defense as will relieve the doer of the act from criminal responsibility.

Frank T. Cullitan, County Prosecutor, Cleveland, John J. Mahon, Asst. County Prosecutor, Cleveland, for plaintiff appellee.

Wallace J. Baker, Lester J. Farber, Cleveland, for defendant appellant.

DOYLE, Judge.

On December 8, 1951, in the early afternoon, George F. Ross, in Cuyahoga County, Ohio, shot Forney Haas, and killed him without justification or excuse.

The victim of the assassin's bullets was a police officer of the City of Cleveland, who, while patrolling on duty in a police car and in full uniform had his suspicions aroused by the defendant, who operated a large Lincoln automobile without a hood covering the motor, and which carried a California license plate. The suspect drove from Euclid Avenue on to Adelbert Road in the vicinity of Western Reserve University, and the officer there stopped him. In the course of the customary questioning, he was asked to produce his driver's license and identification material. In response, he said that his billfold containing his license had been stolen from his room, but that he had other identification papers there which he could show. Thereupon the officer ordered him to drive to his rooming house, and the policeman followed in the police car. After parking their respective cars in the rear of the rooming house, the defendant proceeded into the house through the front door, and the policeman walked behind. The officer, observing the landlady in the hallway, asked her if his temporary companion had reported a billfold stolen from his room. She replied in the negative. They then proceeded up a stairway leading to the second floor. The policeman followed several steps behind the roomer. As the defendant reached the landing of the floor above, he turned, drew a concealed revolver, and fired it into the body of the deceased. The landlady related in the trial that: she heard a shot and a body fall; she then saw a human form lying about two-thirds of the way up the stairs; she ran to the telephone to call for help; and in the meantime two more shots were fired.

The defendant, in relating the tragedy from the witness chair at the trial, spoke of his fear of arrest, and the consequential exposure of a series of violations of a parole awarded him from a California prison. He also feared the officer's discovery of a quantity of stolen property in his room, which was the accumulation of burglaries committed by him. He likewise knew that he had no driver's license, no license for the stolen Lincoln automobile, nor papers of identification which he had promised.

'Q. And when you reached the top step on the second floor you turned; the officer was right behind you; he was facing you then, wasn't he? A. He was. * * *

'Q. * * * And you had in your mind, then, that you were going to escape, didn't you? A. Yes.

'Q. When you turned you pulled out a gun and pointed it at the officer, didn't you? A. I did.

'Q. And you fired a shot, didn't you? A. I did.'

The witness continued with the statement that, before he fired the shot he told the officer to 'raise his hands.' The officer responded with the statement, 'I thought so,' and reached for his revolver.

'Q. What did you do then? A. I fired a shot--a warning shot to the side of him. * * *

'Q. And what happened after that? A. Then I told him again to raise his hands.

'Q. And what did he do or say? A. He continued to bring the gun to bear on me.

'Q. Yes. And then what happened? A. That, I don't know.

'Q. What is the next thing that you do know? A. I know that I was running down the stairs and he was in a crouching position with the gun in his hand, and as I ran by him I grabbed the gun out of his hand.'

Continuing, the witness said that he saw his landlady at the telephone and he ordered her away. He then proceeded on his flight from the scene of his killing. He testified that, after he fled from the house, he examined his gun 'to see actually how many shots had been fired' and 'found that three bullets had been fired.'

The fact was established that at least two bullets entered the body of the deceased--one in the left parietal region of the head and another through the left forearm and the left side of the abdomen. It is possible that the latter two wounds were caused by the same bullet. Be that as it may, death shortly followed.

On January 5, 1952, the defendant was indicted on two counts for murder in the first degree. The first count charged that he 'unlawfully, purposely and of deliberate and premeditated malice killed Forney Haas.' Section 12400, G.C. The second count charged that he 'unlawfully, purposely and wilfully killed Forney Haas, a duly appointed, qualified and acting policeman of the city of Cleveland, Cuyahoga County, Ohio, while said Forney Haas was in the discharge of his duties as a policeman.' Sec. 12402-1, G.C.

On January 7, 1952, the defendant was arraigned, and he pleaded not guilty. On January 14, 1952, at the request of the defense, psychiatrists were appointed to examine into the present sanity of the accused, and on January 24, 1952, upon hearing on the issue of sanity or insanity, he was found to be presently sane. A plea of not guilty by reason of insanity was then entered of record.

On February 4, 1952, upon the issues thus joined, trial was had to a jury, and, at the conclusion thereof, a verdict was rendered finding the defendant guilty on each of the counts in the indictment of murder in the first degree. A recommendation of mercy was not given. Following the overruling of a motion for a new trial, sentence was duly pronounced and recorded, to death in the electric chair.

It is asserted in the appeal to this court that many errors committed in the trial of the case deprived the accused of a fair trial. We are asked to reverse the judgment and remand the cause for a new trial. We will state some of the errors claimed and will examine and rule upon them all.

It is a substantial right of the defendant to a fair trial. This right is not the abstract question of guilt or innocence. A guilty man is entitled to a trial, free from prejudicial error. We must, therefore, give careful heed to the various claims, without regard to the convincing character of the State's case.

It is claimed:

'1. The trial court failed and refused to charge properly in connection with the statutes describing the duties of a police officer, to-wit, O.G.C. (Ohio General Code) 12402-1 and O. G.C. 4378.'

The theory of the defense is that the police officer, when he received the mortal wounds, was not 'in the discharge of his duties,' and therefore a conviction under the second count in the indictment cannot be supported. Sec. 12402-1, G.C., so far as pertinent, is as follows:

'Whoever purposely and wilfully kills a * * * policeman * * * while such * * * policeman * * *...