State v. Barbata, 33763.
Decision Date | 07 January 1935 |
Docket Number | No. 33763.,33763. |
Parties | STATE v. BARBATA. |
Court | Missouri 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 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, 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, The boy, Joe, died two days later.
Appellant's signed statement reads:
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 ( ); 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, ; 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:
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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