State v. Cabaudo

• Decision Date: 04 May 1910
• Citation: 76 A. 42,83 Conn. 160
• Court: Connecticut Supreme Court
• Parties: STATE v. CABAUDO.

76 A. 42

83 Conn. 160

STATE

v. CABAUDO.

Supreme Court of Errors of Connecticut.

May 4, 1910.

Appeal from Superior Court, New London County; Ralph Wheeler, Judge.

Diratto Cabaudo, alias Dominick Diadato, was convicted of murder in the first degree, and he appeals. Affirmed.

Clayton B. Smith and Richard P. Freeman, for appellant.

H. A. Hull, for the State.

RORABACK, J. The accused, Diadato, a native of Italy, has lived in the city of New London about six years. Alphonzo Barbuto, also an Italian, had lived in the city of New London about three years before his death on the 27th of May, 1909. The state offered evidence tending to prove, among other facts, the following: That the accused for several months before the shooting entertained feelings of extreme hatred against Barbuto, occasioned by a fight between them in 1908, and the treatment Diadato received from a woman in March, 1909, for which he claimed that the deceased was responsible. Diadato on several different occasions had threatened to injure and kill Barbuto. On the evening of the shooting the accused saw the deceased in the locality of the saloon and grocery store of Antonio Grippo in the city of New London, and immediately thereafter went to his dwelling place near by and obtained a revolver for the purpose of killing Barbuto. The accused returned, and found Barbuto in Grippo's saloon, when a quarrel was provoked by Diadato, in which he deliberately fired the shot which caused Barbuto's death. Grippo, the keeper of the saloon, then seized Diadato and wrenched the pistol from his hands, and said to him: "See what you have done in my place; you have shot a man." Diadato replied: "I don't care. I wanted to kill him. He is dead, and I die, too." The defendant upon the trial offered evidence to prove that Barbuto had assaulted and beaten him on several occasions, and had repeatedly threatened to do him bodily harm; that ever since he came to this country he owned the revolver with which the shooting was done; that on the evening when the shooting occurred Barbuto grabbed him by the neck, and was trying to drag him into the back yard, when, believing that Barbuto was going to do him great bodily harm, he put his hand into his pocket and took hold of his revolver, intending to withdraw the same and to threaten Barbuto with its use to protect himself from further bodily harm, when his pistol was discharged accidentally; that the mind of the defendant at and for a great many hours before the shooting was greatly affected by the use of intoxicating liquor, so much so that he was unable to know what he was talking about.

The trial court in its charge to the jury used this language: "The testimony of the accused tends to show that the firing of the pistol was accidental; that be put his hand into his trousers pocket, where his pistol was, for the purpose of frightening Barbuto, and that by some one his hand was pulled out, bringing the pistol, which was in some way discharged, without any intent to fire on his part. Q. You will consider his statement in relation to that matter in connection with the testimony of Antonio Grippo and others. If the pistol was thus discharged by accident, the accused was not guilty of any crime of which he can be found guilty under this indictment. This testimony of the accused would exclude any suggestion of self-defense. For if he did not intentionally fire the pistol, he did not act in self-defense in firing it. Still, if there is testimony given in the case by other witnesses which tends to show that, the shot was in fact, tired in self-defense, yon should consider it carefully, and endeavor to apply the general statement of the law of self-defense, as I have endeavored to state it." The defendant has no reason to complain of the charge thus given. The trial court had previously correctly explained the law of self-defense. It has been established by repeated decisions in this state that a court in submitting a case to the jury may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue in the case, and to comment upon the weight of the evidence, so long as it does not direct or advise the jury how to decide the matter. This portion of the charge of the court below was clearly within the rule. State v. Duffy, 57 Conn. 529, 531, 18 Atl. 791; State v. Home, 64 Conn. 329, 337, 30 Atl. 57; State v. Fetterer...