State v. Barbata

• Decision Date: 04 February 1935
• Citation: 80 S.W.2d 865,336 Mo. 362
• Parties: The State v. Paul Barbata, Appellant
• Court: Missouri Supreme Court

80 S.W.2d 865

336 Mo. 362

The State v. Paul Barbata, Appellant

Supreme Court of Missouri

February 4, 1935

Appellant's Motion for Rehearing Overruled February 4 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Arthur H Bader, Judge.

Affirmed.

Joseph B. Catanzaro for appellant.

(1) The court erred in giving to the jury Instruction 1. In defining the word "deliberately," the words "lawful" and "just" should not be used in connection with "provocation" where the evidence develops, and the court instructs the jury upon murder in the second degree as well as upon murder in the first degree. State v. Wilson, 98 Mo. 440; State v. Warren, 33 S.W.2d 125; State v. Sharpe, 34 S.W.2d 75; State v. Malone, 39 S.W.2d 786. (2) The court erred in giving to the jury Instruction 3, because: (a) The instruction assumes that if the defendant was not insane he committed the offense of murder in the first degree and ignores the instruction given on murder in the second degree. State v. Warren, 33 S.W.2d 125; State v. Hersch, 296 S.W. 433; State v. Meininger, 268 S.W. 71; State v. Jordan, 268 S.W. 64; State v. Mills, 199 S.W. 131. (b) The instruction further invades the province of the jury by assuming that the defendant committed the act charged in the indictment, and disregards and ignores the fact that the plea of "not guilty" placed in issue every allegation charged in the indictment, no material allegation being admitted by the defendant's evidence as to insanity. State v. Mills, 272 Mo. 526; State v. Meininger, 306 Mo. 675; State v. Burns, 268 S.W. 79. (c) The instruction unlawfully places the burden of proving the defendant's insanity upon the defendant, ignoring the fact that while the burden of offering evidence may shift during a criminal trial, the burden of proof rests upon the State throughout the entire trial. State v. Malone, 39 S.W.2d 786; State v. Hardelein, 169 Mo. 579; State v. Wingo, 66 Mo. 181; State v. Schaefer, 116 Mo. l. c. 96. (3) The court erred in giving to the jury Instruction 4. (a) It assumes that if defendant was not insane he committed the crime of murder in the first degree. State v. Meininger, 268 S.W. 71; State v. Jordan, 268 S.W. 64; State v. Hersch, 296 S.W. 433; State v. Burns, 268 S.W. 79; State v. Mills, 199 S.W. 131; State v. Warren, 33 S.W.2d 125. (b) It details portions of the evidence which it directs the jury to consider on the issues of defendant's insanity, but dwarfs the importance of other essential parts of the evidence on that issue by omitting any mention thereof. State v. Rutherford, 53 S.W. 417; State v. Mallock, 190 S.W. 266; State v. Fish, 195 S.W. 997; State v. Edelen, 231 S.W. 585. (4) The record being devoid of any substantial evidence of defendant's sanity at the time of the commission of the alleged offense, the record fails to show any substantial evidence of the defendant's guilt, and the conviction must be reversed. State v. Speyer, 207 Mo. 540; State v. Brown, 234 S.W. 785, 290 Mo. 177; State v. Kelsey, 228 S.W. 756.

Roy McKittrick, Attorney General, Olliver W. Nolen and John W. Hoffman, Jr., Assistant Attorneys General, for respondent.

(1) The indictment in this case properly follows the language of the statute and is in a form which has been approved by the court. Sec. 3982, R. S. 1929; State v. Clay, 201 Mo. 681; State v. Mangercino, 30 S.W.2d 763; State v. Messino, 30 S.W.2d 759. (2) The verdict is in proper form and is responsive to the issue. Sec. 3701, R. S. 1929; State v. Long, 253 S.W. 729. (3) Points 8, 9, 10, 14 and 16 raised in motion for new trial are not sufficiently specific to raise the points on appeal. Sec. 3735, R. S. 1929; State v. Early, 49 S.W.2d 1060; State v. Francis, 52 S.W.2d 552; State v. Vigus, 66 S.W.2d 854; State v. Maness, 19 S.W.2d 629; State v. Goodwin. 61 S.W.2d 960. (4) The court did not err in giving to the jury the Instruction 1. State v. Jackson, 167 Mo. 296; State v. Tettaton, 159 Mo. 379; State v. Bobbst, 269 Mo. 225; State v. Hershon, 329 Mo. 495; State v. Adams, 323 Mo. 741. (5) Instructions 3 and 4 given by the court were proper in view of the undisputed evidence and under the sole defense of insanity. State v. Cockriel, 314 Mo. 718; State v. Warren, 33 S.W.2d 128; State v. Meininger, 306 Mo. 690; State v. Mills, 272 Mo. 534; State v. Nave, 285 S.W. 723; State v. Spever, 207 Mo. 555; State v. Bobbst, 269 Mo. 225; State v. Adams, 323 Mo. 741; State v. Jackson, 167 Mo. 296; State v. Fitzgerald, 130 Mo. 435. (6) There was no error in the court's ruling in refusing to permit witnesses for the State to testify upon cross-examination as to the sanity or insanity of the defendant as raised in points 4 and 5 of the motion for new trial. State v. Lewis, 136 Mo. 84. (7) The court did not err in overruling the objection from the defendant to the giving of an opinion by the State witness, Police Officer Forthaus, as raised in points 6 and 7 of the motion for new trial nor were these points properly preserved for review by this court. Sec. 1061, R. S. 1929; Kaechelen v. Barringer, 19 S.W.2d 1037; State v. Wana, 245 Mo. 562. (8) There is substantial evidence to support the verdict. State v. Caviness, 33 S.W.2d 943; State v. Moore, 235 S.W. 1058; State v. Cockriel, 314 Mo. 716. (9) Proofs of the corpus delicti were properly and sufficiently made. State v. Bowman, 243 S.W. 110, 294 Mo. 245; State v. Joy, 285 S.W. 489, 315 Mo. 7. (10) The venue was properly and sufficiently proved. State v. Gow, 138 S.W. 648, 235 Mo. 307; State v. Palmer, 220 S.W. 680, 281 Mo. 525; State v. Murray, 193 S.W. 830.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Paul Barbata, indicted for the murder of Lillian Salamoni, was, upon trial, found guilty of murder in the first degree, and appealed from the judgment thereon. The punishment assessed was death.

Appellant resided with his wife and child, a short distance from the residence of the Salamoni family in the city of St. Louis. The Salamoni family consisted of Sam, the husband and father, Lucille, the wife and mother, and Angeline, Lillian and Joe, the children; the latter aged twenty, eighteen and sixteen, respectively. The homicide occurred January 6, 1933. For approximately three years prior thereto, the appellant, about thirty-two years of age, had been received in the Salamoni home as a friend of the family. So far as the evidence shows, appellant had not taken the daughters out, but had met them at parties and elsewhere. The daughters worked for Liggett & Myers Tobacco Company, and on one occasion, Thursday before the homicide, appellant came there and had a brief conversation with Lillian. Appellant's statement of the case states that "some of the evidence might justify an inference that the mutual admiration between Lillian and appellant was a little more than usual. However, Lillian kept company with other young men and was engaged to be married. This was known to defendant and he did not resent it, nor did he make complaint, so far as the evidence shows." Lillian had received a proposal of marriage in July, 1932, and told appellant to keep away. On January 6, 1933, when the mother and daughters came home from work, the husband was in the house and Joe was out playing. About five or five-ten o'clock P. M., of that day appellant came to the Salamoni home. The mother and father told appellant that his attentions to Lillian were becoming known and, by reason of his being a married man, were causing undesirable comment among her friends. They told him to leave and not come back. The mother testified that appellant left, stating, "I never was rejected from no house. This is the first house I have ever been rejected out of." So far as shown no argument or heated words ever passed between appellant and any member of the Salamoni family. The two girls, Angeline and Lillian, went to the basement of the home. Appellant returned in about ten minutes, came to the basement window, and knocked on it, saying: "Open the window." Lillian complied with the request and appellant (quoting from appellant's statement) said: "'I have come to say goodbye,' and then shot her in the left side of the neck at the base of the thyroid. When he fired the first shot at Lillian he immediately went into the kitchen. Both girls ran up the steps to the kitchen. When they entered the kitchen the defendant was standing by the ice box near the door, with his pistol in his hand. Sam Salamoni, the father, was lying on the floor near the door, dead, and Joe Salamoni, the brother of Lillian, was lying on the floor near a table apparently dead. Lillian sat down in a chair by the ice box and about a foot from the defendant. The defendant then drew his pistol and shot her again and she fell from the chair dead. He then turned his pistol on Angeline and tried to shoot her, but for some reason the pistol failed to fire; then he pointed the pistol at Mrs. Salamoni and tried to shoot her, but again it failed to fire. The defendant then left the room and went to the police station, gave information of the tragedy and surrendered himself into the custody of the law." The boy, Joe, died two days later.

Appellant's signed statement reads:

"I Paul Barbata, of lawful age, in order that the full truth may be known, make the following free and voluntary statement, without threat or punishment, or promise of immunity or reward, being informed that what I may herein say may be used as evidence against me, if the prosecuting officers should so desire.

"About 5:10 this P. M., I was visiting the home of Sam Salamoni, at 2317 Cooper Street. Sam Salamoni, the father, and Lucille Salamoni, the mother, were in the kitchen, and they began accusing me of disgracing their family by talking to their daughters, Lill and Angeline, and that...