Zoldoske v. State

• Decision Date: 15 June 1892
• Citation: 52 N.W. 778,82 Wis. 580
• Parties: ZOLDOSKE v. STATE.
• Court: Wisconsin Supreme Court

82 Wis. 580

52 N.W. 778

ZOLDOSKE

v.STATE.

Supreme Court of Wisconsin.

June 15, 1892.

Error to circuit court, Grant county; GEORGE CLEMENTSON, Judge.

Rosa Zoldoske was convicted of murder in the first degree, and brings error. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

An information was filed in the circuit court of Richland county, charging the plaintiff in error with having on the 8th day of January, A. D. 1891, at said county, feloniously, willfully, and with malice aforethought killed and murdered one Ella Maly, against the peace, etc. After pleading not guilty to the information, a change of venue was awarded to the circuit court for Grant county, where the case was tried, and a verdict was rendered finding the plaintiff in error guilty of murder in the first degree. Upon this verdict she was sentenced to confinement in the state prison for life. The record of the evidence given at the trial is very voluminous, and the rulings complained of numerous. A motion was made for a new trial, on the ground that the verdict was against law and against the evidence; for errors in the court in remarks made in the presence and hearing of the jury during the trial; for the refusal of the court to exclude witnesses for the state from the court room while other witnesses were being examined, as requested by defendant's counsel; for errors of the court in admitting improper testimony over objections of the defendant; in rejecting proper testimony offered by the defendant; and in refusing to allow the defendant to ask proper questions of the witnesses on cross–examination; and for error in the charge of the court.

The plaintiff in error, an unmarried young woman, came to Richland Center in 1888, where she was employed and made her home at the house of Dr. Mitchell. Afterwards she began working in the millinery business, and so continued to the time of the death of Ella Maly, still making her home in the family of Dr. Mitchell, with whom she lived on intimate terms. At the first Christmas after she came there, in 1888, she and Dr. Mitchell and Mrs. Mitchell exchanged presents, and so at the subsequent Christmas. In February, 1890, Mrs. Mitchell gave birth to a child, and was in ill health for some considerable time, but not seriously ill. She died quite unexpectedly, on the 25th of March, 1890. For several hours preceding her death she was in the exclusive care and charge of Rosa Zoldoske and her son, Freddy Mitchell, a youth about 10 years of age. During a portion of this time the accused was in the bedroom alone with her. Mrs. Mitchell died in spasms and convulsions, manifesting symptoms of strychnine poisoning. Among other things kept in the house of Dr. Mitchell was a small bottle containing strychnine in his cabinet in the parlor, not sealed, having an ordinary cork, which any person could remove without difficulty. It was purchased to poison rats and other vermin, the family having been annoyed by rats and mice. Some time prior to his wife's death, Dr. Mitchell took this bottle out from his cabinet to the dining–room table, and prepared some strychnine and cheese to poison rats. This was done while Rosa Zoldoske and Freddy Mitchell were present. The bottle had a regular poison label upon it, with “strychnine” printed in the English language, and was in a position in the cabinet where any member of the family could get it, and it contained from one fourth to one third of a teaspoonful of strychnine. A considerable testimony was given tending to show that the accused became enamored of the doctor, and was desirous of marrying him. After the funeral she objected to Mrs. Mitchell's sister taking the baby to Monroe to care for it, and she continued as a member of the household, caring for the child and Freddy somewhat, and giving some attention to the household affairs. Dr. Mitchell's family consisted of an old lady. Mrs. Handy, who did some work about the house and took care of the baby, his son Freddy, and the hired girl, Anna Kistler. After Mrs. Mitchell's death, the accused refused to go into the room where her corpse lay, and made the remark to one of the witnesses that money could not hire her to go into that room, and also stated that Mrs. Mitchell had said to her that if she (Mrs. Mitchell) should die the doctor would be paying attention to her (Rosa Zoldoske) within two months, and would marry her within six months. After Mrs. Mitchell's death she (Rosa) retained her position in the millinery store. No further attention was given to the sudden and unexpected death of Mrs. Mitchell until after the death of Ella Maly, January 9, 1891. During the month of October, 1890, Rosa went to the house of Mrs. Emma Hyndman in a considerable excitement, entered without knocking, and said to Mrs. Hyndman she came to talk about Dr. Mitchell; that he had not acted natural of late; that she did not know why; that perhaps Mrs. H. might have some influence with him. Mrs. H. finally said, “Rosa, do you want me to recommend you to the doctor?” She answered she did. Mrs. H. saw Rosa shortly after this, and Rosa remarked, “It's all right, now.” In November, Rosa went to the office of Dr. Lovering, pretending to want some medicine for a pain in her side, though she was then living at the home of Dr. Mitchell, Mrs. Lovering being present.Rosa said to the doctor she would like to have a talk with him in private. Mrs. Lovering left the room, and Rosa said to the doctor, “I want you to do me a favor.” She wished him to speak with Dr. Mitchell; that Dr. Mitchell thought a good deal of him, and believed what he said; that Dr. Mitchell had told her before that he (Dr. Lovering) had picked him out a good woman, and she was a jewel, and if he would speak a good word for her it might have some influence with the doctor; that she had taken care of the children a good while, and he ought to marry her; that, if he would speak a good word for her to the doctor, when he married her she would give him $10. She subsequently called on Dr. Lovering, and inquired if he had seen Dr. Mitchell, and, on being informed that he had, she wished to know how he seemed,––whether he cared anything for her; and inquired of Dr. L. if Dr. Mitchell cared anything about May Hyndman. Soon after these interviews Dr. L. received a letter, unsigned, which the proof tends to show was in the handwriting of Rosa, containing a five–dollar bill, which was as follows: “Dear Friend: You have done well. I will give you $5 now, and the other when your work is finished. Burn this up. Yours, ____ P. S. I can see a great change in the doctor. He gave me the loveliest Christmas present you ever saw. I know you did good work. Yours ever.” Dr. L. called on her and offered her back the $5, saying that what he did was not for pay, and that she must take it back. She insisted on his keeping it as a Christmas gift. Previous to Christmas, 1890, Dr. Mitchell had occasionally ridden out with Ella Maly; on one occasion had spent some time with her in preparing music and a program for exercises of the Methodist and Baptist churches at Richland Center; and on one occasion Ella Maly called at his house in respect to the entertainment, and met the doctor in the parlor, Rosa being in an adjoining room, the doors to which were at first open, but presently the doctor closed them. After a short time he and Ella went out together, and he accompanied her up the street in the direction where she was employed. A considerable testimony, circumstantial and otherwise, was given tending to show that Rosa became extremely jealous of Ella Maly; and it was conjectured that the doctor might marry Ella Maly. On the 8th of January, 1891, Rosa got up a party at Dr. Mitchell's house, inviting several young ladies, and, among others, Ella Maly and her sister Lilly. She procured for supper that evening some oysters, which were served in soup, and oranges, and one of the girls furnished cake. On that afternoon Rosa attempted to purchase in one store five cents worth of oysters, and was refused. Going to another store, she purchased five cents worth of oysters, stating at both places that she intended to take them home and try them, as she expected to purchase some for the party that night. The evidence shows that she did not bring them home with her. She had, it appeared, purchased oysters before in such small quantities. After making the purchase of five cents worth of oysters she went to Bailey's store, where Miss Maly was employed, appeared excited, and passed Miss McKay at the door, with whom she was well acquainted, without speaking to her, although she met her face to face. She appeared to have no business in the store, except to request Miss Maly to invite Miss McKay to attend the party that evening, and, though she met her at the door, did not herself invite or speak to her. After she left Bailey's store she purchased five cents worth of chocolate creams in one store, and, passing from there to another, bought another similar package of chocolate creams.

The testimony shows that strychnine has an exceedingly bitter taste, and that it can be taken without much fear of detection in a raw oyster or chocolate creams. The invited guests arrived at the house of Dr. Mitchell, some of them between 4 and 6 o'clock, and Ella Maly and her sister at about 6. Shortly after Anna McClaren, then employed at Dr. Mitchell's, who prepared the supper, announced that it was ready, when the young ladies repaired to the dining room, taking places as designated by Rosa, she sitting down with the others. Shortly after she had taken her seat, and before they began to eat, she excused herself, saying that she was sick. She passed out of the back door, came around the house, and in at the front door, and went upstairs to her room. The other young ladies finished their supper, when Miss McClaren, on request of Rosa, asked May Hyndman to step up to her room. When Miss Hyndman went up...