State v. Barbata, 33763.

Decision Date07 January 1935
Docket NumberNo. 33763.,33763.
PartiesSTATE v. BARBATA.
CourtMissouri Supreme Court

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

Paul Barbata was convicted of murder in the first degree, and he appeals.

Affirmed.

Joseph B. Catanzaro, of St. Louis, for appellant.

Roy McKittrick, Atty. Gen., and Olliver W. Nolen and John W. Hoffman, Jr., Asst. Attys. Gen., for the State.

BOHLING, Commissioner.

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 5 or 5:10 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 the girls' future happiness was gone, and that everybody on the `hill' was talking about it, and that I was the cause of it.

"I then went home where I got my blue steel, 32 caliber automatic pistol and returned to the Salamoni home at 2317 Cooper Street. I went through the side entrance on the south side of the house; the two girls were washing clothes in the basement. The basement window was open. I knelt down and fired a shot through the basement window and I think I hit Lill in the shoulder. I then went around the rear of the house and entered the kitchen door. I shot the father and I shot the boy, Joe. Lill had come from the basement and was sitting on a chair leaning against the icebox; Angeline was hollering, `don't Paul don't,' and I then went over and fired another shot into Lill's body.

"After the shooting I ran out the front way. The gun jammed on me, but I intended to kill the whole family and myself. I ran north on Cooper Street after leaving the house and threw the gun away, and ran to the Mounted District where I gave myself up.

"I have read the foregoing statement consisting of one page and it is true in its entirety. I have signed this page and have been given an opportunity to make any corrections or additions I saw fit to make."

Upon arraignment, appellant entered a plea of not guilty. The appellant offered no evidence on the main issue, and such evidence as was offered in his behalf was on the issue of his sanity. A number of lay witnesses, after qualifying as to their knowledge of appellant and appellant's actions, and two medical experts, testified that, in their opinion, appellant was insane.

In rebuttal, the state adduced testimony to the effect appellant was sane. Other facts, in so far as material to specific issues, will be set forth in the opinion.

I. In view of the contentions presented, we determine first whether or not defendant was entitled, under the facts, to an instruction on murder in the second degree. The trial court gave such an instruction. The uncontradicted evidence shows that appellant killed the deceased with a deadly weapon, and (if sane) willfully, deliberately, and premeditatedly. There is an entire absence of evidence on the issue of any lawful or just provocation. State v. Kotovsky, 74 Mo. 247, loc. cit. 251. Appellant offered evidence only on the issue of his sanity. Under its sworn duty to try the case under the evidence and the law, the uncontroverted facts precluded the jury from bringing in a verdict other than that the appellant was guilty of murder in the first degree, or was to be held not responsible for his act by reason of his insanity. It has been uniformly held that where the only submissible issue made is murder in the first degree an instruction on murder in the second degree is not justified. Among the cases so holding, tried on the theory of a willful, deliberate, and premeditated killing, are: State v. Nasello, 325 Mo. 442, loc. cit. 459, 30 S.W. (2d) 132 (stating that such has been the ruling of this court for a period of fifty years); State v. Adams, 323 Mo. 729, loc. cit. 741, 19 S.W.(2d) 671 (a banc case); State v. Paulsgrove, 203 Mo. 193, loc. cit. 206, stating loc. cit. 204, 101 S. W. 27, 30. "They [the jury] were bound either to find the defendant guilty of murder in the first degree, or acquit him on the ground that by reason of his insanity he was not responsible for his act in killing the deceased"; State v. Tettaton, 159 Mo. 354, loc. cit. 379, 60 S. W. 743, 751, stating, "The killing was either murder in the first degree or nothing, and it would have been error for the court to have instructed upon any other degree of homicide"; State v. Holloway, 156 Mo. 222, loc. cit. 231, 56 S. W. 734, 737, stating, "No half way house exists, in a case of this sort, between murder in the first and any minor degree of that crime. Defendant, if sane, `could coolly deliberate said murder'; if insane, he could neither deliberate nor premeditate * * *"; State v. Bobbst, 269 Mo. 214, loc. cit. 224, 190 S. W. 257; State v. Lewis, 273 Mo. 518, loc. cit. 532, 201 S. W. 80. As the submissible issues govern the law applicable to a case, we hold an instruction on murder in the second degree (although given) was not within the issues made; and the review of the instant case will be so restricted.

II. Appellant attacks instruction No. 1 for the reason that it improperly defines "deliberately" in that it uses the words "lawful" and "just" in connection with the word "provocation."

The trial court instructed: "`Deliberately' means done in a cool state of the blood. It does not mean brooded over or reflected upon for a week, a day or an hour, but it means an intent to kill, executed by the defendant in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or provocation."

Appellant stresses the case of State v. Warren, 326 Mo. 843, 33 S.W.(2d) 125, 130. The defenses in the Warren Case were insanity and self-defense (326 Mo. 843, loc. cit. 849, 33 S.W.(2d) 125, 127); and, the evidence justifying an instruction on murder in the second degree (326 Mo. 843, loc. cit. 851, 33 S.W.(2d) 125, 128), the court gave instructions on first and...

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