State v. Di Stefano

• Decision Date: 10 June 1941
• Docket Number: No. 37459.,37459.
• Citation: 152 S.W.2d 20
• Parties: STATE v. DI STEFANO.
• Court: Missouri Supreme Court

152 S.W.2d 20

STATE v. DI STEFANO.

No. 37459.

Supreme Court of Missouri, Division No. 2.

June 10, 1941.

Appeal from St. Louis Circuit Court; Edward M. Ruddy, Judge.

Salvatore Patti Di Stefano, alias Samuel Patti, alias Samuel Russo, was convicted of murder in the second degree, and he appeals.

Affirmed.

Anthony Canzoneri and Joseph B. Catanzaro, both of St. Louis, for appellant.

Roy McKittrick, Atty. Gen., and Vane C. Thurlo, Asst. Atty. Gen., for respondent.

TIPTON, Presiding Judge.

The appellant was convicted of murder in the second degree in the circuit court of the city of St. Louis, and his punishment assessed at fifty years in the state penitentiary. From that sentence he has duly appealed to this court.

The appellant has assigned two errors in his brief; first, that the trial court erred in admitting in evidence an alleged confession, and second, that the court erred in failing to declare a mistrial, on account of the conduct of the assistant circuit attorney.

Appellant contends that his alleged written confession, admitted in evidence, was not a voluntary one, but was obtained by a long, continuous and rigid examination under coercion, with threats and physical mistreatments by the police officers of the city of St. Louis. In other words, the state failed to sustain the burden of proof, that the alleged confession was made voluntarily.

The court first heard evidence, pro and con, touching the circumstances under which the confession was made, out of the presence and hearing of the jury. The testimony of two police officers was that the confession was the free and voluntary act of the appellant. They denied that he had been beaten and maltreated, or promised immunity. On the other hand, the appellant testified that he had been continuously examined by the officers from about midnight of the day he was arrested until about 10:30 o'clock, the next morning; that he had been hit on the nose, causing it to bleed; that he received bruises on his legs and arms; that he was suspended from a door by his hands, which were handcuffed behind him; that he made the confession out of fear, and was promised release if he would sign the written confession; that he did not know what the written statement contained because he could not read English, however, there was testimony to the contrary as to his ability to read and write English. He, also, testified that he was denied the right to consult any attorney. After hearing the evidence, the trial court stated he did not believe the appellant had been mistreated or promised immunity, and that he thought, under the circumstances, the confession should be admitted and the jury, under a proper instruction, could pass on the question of whether the confession was voluntary. A proper instruction on this question was given.

"The rule in this state * * * is that if the defendant object to the admission of the confession on the ground that it was involuntary, and request a preliminary inquiry out of the presence of the jury, the same should be granted. At that hearing if the evidence is conflicting and substantial the court may determine the mixed question of law and fact by weighing the evidence; and if convinced one way or the other should rule accordingly. The state carries the burden of proof at such preliminary hearings.

"It is not the law that if there be any substantial evidence indicating the confession was voluntary the court must refer the question to the jury, however much it may be outweighed by evidence to the contrary. If that were true the court would be doing no more than it always does throughout a trial in ruling on the admissibility of evidence; and there would be no need of such preliminary hearings except in the rare instances when such evidence is wholly lacking. On the other hand, when there is substantial conflicting evidence and the question is close it is better to refer the underlying issue of voluntariness to the jury than to exclude the confession, since there is less chance of a miscarriage of justice by leaving the question open to a second determination, before the jury on a rehearing of the evidence under proper instructions, than by foreclosing the inquiry. The court then can still exclude the confession if it finds from all the evidence, including that introduced at the preliminary hearing, that the same was involuntary. Biscoe v. State, 67 Md. 6, 8 A 571. But in either event unless manifest...