State v. Ross

• Decision Date: 06 July 1915
• Docket Number: No. 18680.,18680.
• Citation: 178 S.W. 475
• Parties: STATE v. ROSS.
• Court: Missouri Supreme Court

178 S.W. 475

STATE v. ROSS.

No. 18680.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Susie Ross was convicted of murder in the second degree, and she appeals. Reversed and remanded.

Defendant has appealed from a Conviction of murder in the second degree, under which she was sentenced to 10 years in the penitentiary. She killed her husband, Haywood Ross, on August 12, 1913. Insanity was her defense. She was about 47 years old, and her husband about 55. They had been married 24 years, and had lived on a farm 2½ miles northwest of Fulton for 20 years previous to the kiling. They had one child, Ernest, 17 years of age. They were both hard-working and economical to a fault, and each had accumulated considerable property. In her younger days she was lively, fond of music, and sociable. He had been a schoolteacher, and had traveled over Callaway county extensively as an insurance agent in his earlier life.

At a previous term of the court defendant had been tried and convicted. In that trial she was represented by two lawyers, who disagreed as to whether the defense of insanity should be presented, with the result that the merits of the defense of insanity were not adequately presented, and the case seems to have gone to the first jury mainly on the question as to whether the defendant killed her husband. A new trial was granted. Before the last trial the defendant presented an application for a change of venue on the ground of the prejudice of the inhabitants of Callaway county against her. The application was signed and sworn to by her `attorneys, C. M. Hay and J. R. Baker. It was supported by the affidavits of R. S. Lamar and E. W. Dunavant, but it was not signed or sworn to by the defendant. That application began as follows: "Come now C. M. Hay and J. R. Baker, and show to the court that they are the attorneys and agents of the above-named defendant, Susan Ross; that said Susan Ross, on account of her mental condition, is not capable of presenting this petition or making an affidavit thereto, and that they present this petition for her; that she has no parent or guardian to make same for her." On the hearing of that application the court limited the witnesses on each side to 10. Defendant introduced as witnesses the county clerk, who had been 8 years in office, farmers from different localities in the county, a banker, a deputy sheriff, who had been sheriff of the county, and a real estate dealer. It appeared from their evidence that the question of defendant's guilt or innocence had been very extensively discussed in the county, and that there was almost a consensus of opinion, so far as expressed, that the defendant was guilty. The state put 6 witnesses on the stand, 5 of whom testified in effect to the same thing. Defendant read in evidence copies of the Fulton Gazette and Fulton Daily Sun, giving in detail the evidence at the coroner's inquest and at the previous trial.

The transcript on file in this court does not show the examination of the jurors on their voir dire. The application for a continuance was overruled.

The son, Ernest Ross, testified that he and his father, on the afternoon of August 11th, the day before the father's death, went to the house of a neighbor, Mr. Rankin; that on that trip he informed his father that he (the son) was ruptured; that when they got home in the evening they informed the mother of that fact, and that she fell on the floor and cried, but was able to get supper; that they went to bed about 8 o'clock, the father and mother in the same bed in the west room downstairs, and the son in the east room upstairs; that about 9 o'clock, hearing his father and mother talking, he went downstairs, and that they were again up and discussed a contemplated trip by the son to consult a doctor; that they again went to bed as before; that about half past 5 next morning he woke, and heard his mother screaming; that he ran downstairs in his underclothes, saw his father lying on his back in bed, and his mother on the floor on her hands and knees. He asked her what was the matter. She made no answer, and finally said, "Oh, that man !" He spoke to his father, who made some kind of a noise, and died. Witness telephoned for the neighbors, who came, as did the family physician, Dr. Crews, the coroner, Dr. Young, and Dr. Christian. Mr. McClellan was the first to arrive at the Ross home. He found Mrs. Ross on the floor, lying face down. Ernest assisted her to get on the bed by his father, where she lay moaning and saying nothing. After Dr. Crews came, she told him that she had a pain in her head. She was then laid in her nightgown on a bed in the east room. For a while, as she lay there, her gown did not properly cover her person. What its condition was is not further shown. Dr. Young got there about 8:30. He took her statement as follows:

"We have been—Mr. Ross and myself—married almost 25 years. We went to bed about 10 o'clock in the west room. I was not up during the night that I know of. I do not know what time we got up this morning. Mr. Ross was not up during the night that I know." To most all questions the witness answered, ": do not know." She said she did not know her husband was dead. "I did not hear any pistol shots at all this morning. We have a pistol and gun, too. I did not see them at all this morning. We keep the pistol in the wardrobe. I have used the pistol in shooting at hawks. I don't know if the pistol was loaded. I saw the pistol Friday. I do not know that I showed the pistol to my sister Friday. If there had been any pistol shot around here last night, I would have heard them. I don't know that my husband was sick last night, but there was something unusual happened here this morning; but I don't know what it was. I don't know what time we got up this morning. We usually get up at 6 o'clock. When I awakened, I called Ernest this morning. I am not in the habit of calling Ernest. I believe he came when I called him. I had a headache yesterday. I was up, though. I am a light sleeper; but I did not hear anything last night or this morning like a pistol shot. The pistol was not loaded when I had it last week. I did not see it this morning. When I awakened, my husband was sick. I sent for the doctor. I did not know how I happened to send for the doctor. My husband had no enemies that I know of that would injure him. He was well liked here in the neighborhood. I did not see any man here. I do not know who I was referring to when I said `Oh, that man !' to Earnest. slept in the west room all night. I always do. There has been no trouble between me and my husband, or the family. I do not know how my husband came to his death. The pistol was in the drawer last night, I reckon. I don't know whether I took the pistol out of tie drawer, or not. I did get it; I did need it. We never talked needing the pistol for defending ourselves."

About 9 o'clock a coroner's jury was impaneled and an additional statement was taken from Mrs. Ross in shorthand and read in evidence on the trial. It was much longer than the statement first made by her, as above shown, but did not otherwise materially differ from it.

The state in its evidence in chief put the son Ernest on the stand and inquired of him at length as to his parents' treatment of each other, and as to the reciprocal treatment of the parents and son. He stated on direct examination that his parents both treated him kindly; that he (witness) once struck his mother with his hand; that he had never seen his father strike his mother, but that she struck his father once, four or five years before the trial; that his parents sometimes quarreled; and that his mother usually on such occasions had the last word. On cross-examination he stated that his father did not talk much with his mother, and sometimes spoke crossly to her, and would ask her to get out of the way; that he (witness) struck his mother two or three times; and that he once knocked her off of a tub in his father's presence, and that he did not remember that his father said anything to him about it.

During the direct examination oaf Eliza Ross, a witness for the state, who married a cousin of the deceased, the following occurred:

"Q. Do you know how they got along, Mrs. Ross? A. Well, I don't think they ever got along very well, at all. Q. Do you know of any instances? A. Well, I staid in their home for seven weeks once, when Ernest was a baby, and they didn't agree at all on anything while I was there. Q. I believe you stated that they didn't get along well? A. No, sir; they didn't get along. They would go for weeks and not speak. Q. Did you gather who was doing the quarreling? A. Well, at that time Mr. Ross did the most of it; yes, sir. Mrs. Ross didn't fuss with him very much. She would get provoked, and say things, like any one else would."

On cross-examination she stated that he was not good to his wife, and that she could not recall an instance in which the wife was the cause of a difficulty; that he once became angry because witness provided some delicacies for her, about the time Ernest was born.

Mrs. Laura Nichols, another witness for the state, on direct examination testified:

"Q. Do you know how Mr. and Mrs. Ross have gotten along? A. Well, she seemed to think she was treated awfully bad by him and the boy. We had always been good friends, and she told me her troubles a good deal. Q. What did she say about it? A. Well, she said that Ernest's father caused him to mistreat her. She said that she believed that Ernest would be good to her, if Mr. Ross encouraged him to. She said that he was born that way, and Mr. Ross encouraged him to be mean to her. She said that, if his father would get mad about anything, he would get mad, too, and they would raise Cain around about anything that came up. Q. Did she ever tell you about Mr. Ross' striking her? A. No, sir. One time I tried a dress on...