Ross v. State

• Decision Date: 03 November 1948
• Docket Number: No. 24094.,24094.
• Citation: 220 S.W.2d 137
• Parties: ROSS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 137

220 S.W.2d 137

ROSS v. STATE.

No. 24094.

Court of Criminal Appeals of Texas.

November 3, 1948.

Rehearing Denied May 11, 1949.

Appeal from District Court, Fayette County; J. R. Fuchs, Judge.

Lloyd I. Ross was convicted of murder with a death penalty, and he appeals.

Judgment affirmed.

Fred Blundell, of Lockhart, Leonard Brown, of San Antonio, C. C. Jopling, of LaGrange, and J. H. Schleyer, of New Braunfels, for appellant.

A. J. Luckett, Co. Atty., of New Braunfels, John C. Marburger, Co. Atty., of La Grange, J. Lee Dittert, Dist. Atty., of Bellville, and Ernest S. Goens, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a conviction for murder with a death penalty.

Dr. Lloyd I. Ross was a practicing surgeon in the City of San Antonio. Through the years he became acquainted with Willard York and intrusted to him for investment a large amount of securities. In the early part of 1947 appellant learned that the stocks and bonds and all the securities he had placed with York had been mishandled. The doctor became much troubled over his loss and the fact that his friend had betrayed him. On Sunday morning the 25th day of May, 1947, he left his home in San Antonio and parked his car in Stahl Lane, near the home of Willard York in Comal County, and waited until York and his family came along in their car. The family consisted of his wife, his sixty-seven year old mother, Mary York, his nine year old son, John York, and his thirteen year old daughter, Ann York. Appellant opened fire on the family which resulted in the death of four, leaving only Ann York as the survivor. She escaped by fleeing from the car while he was shooting at her. The prosecution is for the murder of Mrs. Gertrude York, wife of Willard York.

The appellant then returned to San Antonio and voluntarily surrendered to the city police, to whom he told the story of the killing in Comal County. Communication was had with the sheriff's department in New Braunfels, where the appellant was lodged in jail later in the day. He was denied bond and retained in jail in Comal County until his case was called for trial in September following. After an effort to secure jurors qualified under the law, the court, on his own motion, transferred the case to Fayette County, where it was called for trial October 13, 1947. The lengthy trial brings to this Court quite a voluminous record, with seventy bills of exception for our consideration. These complain of the action of the court in changing the venue of the case; also many objections to nonexpert witnesses' testimony as to the mental condition of the accused; and chiefly the grounds upon which reversal is sought seems to be that the evidence of insanity, as produced by the appellant, was so impressive that the judgment should not be permitted to stand. There are also objections to the court's charge and to the argument of the district attorney in several particulars. The opinion will deal with these questions and such others as might be properly involved by them.

We note the views expressed in appellant's brief on the law of insanity. The requested charges and exceptions to the charge indicate that both the court and counsel for defendant had reviewed extensively the law on the subject in other jurisdictions as well as in Texas. On some questions there is sharp disagreement between the states as to what the law should be. The opinions by the various courts in Texas, civil as well as the Court of Criminal Appeals, might, in instances, be subject to discussion, but we think there is no conflict so far as the law of the case now before us is involved.

We may eliminate a discussion of a large part of the record by the positive statement that Texas does not recognize the doctrine of irresistible impulse. Carnes v. State, 101 Tex.Cr.R. 273, 275 S.W. 1002. Much of the evidence in the case presents conclusions of witnesses, based on the idea which the witness had that circumstances had developed in the appellant an irresistible impulse which drove Dr. Ross to the murder of Willard York, and with him his wife, Gertrude York.

Eliminating all discussion about the types of insanity, the one controlling question in this case is whether or not the accused was so mentally deranged at the time of the commission of the alleged offense as to make him incapable of knowing the right from the wrong in the particular transaction, and that it was a thing he ought not to do. Davidson v. State, 109 Tex.Cr.R. 251, 4 S.W.2d 74. He might have been indulged even from childhood so that he gave undue importance to his own position in matters. He might have been sensitive, suspicious, and retiring. He might have been abnormal, as concluded by the psychiatrists, all the days of his life. His nerves might have been frayed because of his strenuous professional duties and the worry which his losses brought upon him. Yet the question remains: Did he have sufficient mental capacity at the time of the tragedy to know and understand the right from the wrong in the particular matter involved?

The circumstances under which the murder took place are important. His actions before and after the tragedy were considered by the jury. His life experiences were presented to the jury and utilized by them in determining the mental capacity of the man at the very time of the shooting. The field of inquiry is wide, but this cannot affect the rule of law which we have stated, and which should be kept definitely in mind in order that we may discuss more briefly such questions as appear to call for treatment in this opinion.

The first question complains of the action of the judge of the District Court in transferring the case from Comal County to Fayette County for trial. We see no ground for complaint in this. A large number of jurors had been examined. Ten qualified and had been accepted by both sides. The court, on his own motion, at this time transferred the case and gave as his reason that he had become satisfied that a trial alike fair and impartial to the accused and to the State could not be had in Comal County, for the reason that the examination of one hundred and seventy-three veniremen and talesmen showed that the facts of the alleged crime "* * * have so permeated the entire citizenship of the county, from what can be discerned from the jurors, from the veniremen and the talesmen, that there is hardly a man in the County who has not made up his mind either one way or the other, and it further appearing to the court from the facts and circumstances which have come to the knowledge of the court during the proceeding herein that justice demands and the interests of the accused and the State would better be served by a transfer of this cause to some other county for trial." Nothing is presented in the record to refute this finding and it will be presumed that the trial court had a basis for it. Under such presumption we cannot say that he was not authorized to transfer the case.

Of the seventy bills of exception, we find a great many relate to the admission of evidence and will be considered under classifications along with a discussion of what appears to be the chief grounds upon which a reversal is sought. We might summarize the arguments, both in the brief and that made orally, by saying it was the view of appellant's counsel that the evidence is so overwhelmingly in favor of the plea of insanity that the verdict of the jury, assessing a death penalty, should not stand. On this issue we have given careful consideration to the testimony of all of the witnesses produced. They come under two classifications; those who had known the appellant for some time, who had been associated with him intimately and were in position to detail the acts and conduct of the man for the consideration of the jury and as a basis for expert testimony; the other class would be those who did not know him intimately but who examined him for the purpose of testifying to their conclusions as experts.

Of the first class there are a great number; patients, some of whom had been engaged with him in social activities also; nurses who had worked for him in his office or aided in his operations; and doctors who had even better and more frequent opportunities to observe him in his professional connection as well as social activities. Each and all of these witnesses claimed a definite understanding of the man. They pictured him as a very capable surgeon, one who was extremely meticulous, interested in his profession above all things else, quiet, courteous, and possessed the qualities of a perfect gentleman in his office and out of it. Generally, they described a definite change in the man soon after publicity was given to the failure of the York Company and his loss in such failure. He had talked to them about his loss. He had revealed his fear of his health condition. He had expressed disappointment in the betrayal of a friend (Willard York). He had an appearance of untidiness not theretofore characteristic of him. He was forgetful and nervous; was seen to drop his cigarette with a lighted match on the rug and did not realize it. He sometimes failed to recognize friends when he met them. On one occasion, shortly before the homicide, a couple, close friends, visited in his home for the evening and he sat in perfect silence and never uttered a word. There is other evidence along this line not mentioned and there is evidence to contradict it. Even a doctor friend introduced by the defense, who expressed an opinion that he was insane on the day of the killing, visited with him the day before and they were together a considerable time. This witness said he was not insane then. Other associates testified as State witnesses and by their evidence raised issues of fact for the jury pertaining to his mental state during the months previous to the homicide, at the time — and continuously to the date of the trial.

The State introduced rebuttal...