State v. Falbo

• Decision Date: 14 March 1960
• Docket Number: No. 47442,No. 1,47442,1
• Citation: 333 S.W.2d 279
• Parties: STATE of Missouri, Respondent, v. Salvidor FALBO, Appellant
• Court: Missouri Supreme Court

Page 279

333 S.W.2d 279

STATE of Missouri, Respondent, v. Salvidor FALBO, Appellant.

No. 47442.

Supreme Court of Missouri, Division No. 1.

March 14, 1960.

Gayles R. Pine and Robert L. Welling, of Pine & Welling, Warrensburg, for appellant.

John M. Dalton, Atty. Gen., Donal D. Guffey, Asst. Atty. Gen., for respondent.

HOLMAN, Commissioner.

Charged by indictment with murder in the first degree, the appellant, Salvidor Falbo, hereinafter referred to as defendant, was found guilty of murder in the second degree and his punishment fixed by the jury at imprisonment in the penitentiary for a term of 60 years. Defendant has appealed from the ensuing judgment.

The indictment alleged that defendant killed Shirley Alice Kyle on June 25, 1957, by placing his hand over her face and mouth thus causing her to suffocate. Defendant at that time was 15 years old but was large for his age, being six feet tall and weighing over 200 pounds. Both the Kyle and Falbo families lived in a relatively new housing development in Clay County, Missouri. The rear of the Kyle lot abutted a small tract upon which a lake was maintained for the benefit of persons living in that area. The Falbo family lived about two blocks away on the opposite side of the lake. According to an aerial photograph in evidence, there was a small wooded area just northwest of the dam and there was a rather large undeveloped wooded area just west of a road which appeared to run north and south a short distance west of the lake.

In the late afternoon of June 25, 1957, defendant had gone to the lake dressed in his swimming trunks. Shirley, aged 10, and her girl friend, Carol Clark who lived next door, had been playing near the lake. Defendant engaged in a conversation with Shirley and they were last seen by Carol walking into the wooded area to the northwest of the dam. About 7 p. m. Shirley was found dead, by a searching party, in the wooded area west of the road. Her body was more or less concealed in the weeds and brush and was unclothed except for a T-shirt she had been wearing. Her slacks, shoes, and panties were lying by the side of and partially on her body.

The defendant was taken into custody by Kansas City police officers at about 5 o'clock the next morning. He was found hiding in an excavation in the 'north end area' of Kansas City. Defendant was taken to police headquarters where he made an oral confession to the officers present in which he admitted having killed Shirley. Later he was turned over to the sheriff of Clay County and was taken to the police department in Excelsior Springs where, at about 8 a. m., he made another oral confession in the presence of a priest, the prosecuting attorney of Clay County, and other officers. On the following day he was questioned by Austin F. Shute, an assistant prosecuting attorney of Jackson County, in the basement of the Clay County jail and repeated his confession a third time. There was no conflict of any consequence in these statements, although some contained certain information that was not included in others. A consolidation of the information contained in the three interviews would include the following admissions by defendant: He stated that he met Shirley and asked her to go with him across the road and he would show her some birds; that they went into a wooded area where there was a small grassy place and they got into an argument, although he appeared not to remember what they argued about; that he put his hand over Shirley's mouth and nose and held it there for approximately ten minutes until she got quiet. In one interview it appears that he placed his hand over her face because she had screamed and in another his statement seems to indicate that he may have put his hand over her face because she wanted to leave the area. Also, in the statement given in the Clay County jail he stated that he intended to commit a sex assault upon her and on the way into the woods he picked up a large stick, broke it in two and took one end of the stick with him into the woods intending to kill her with it but that he did not strike her with the stick. He further stated that after Shirley stopped struggling he took off her slacks and panties and lay down beside her and 'masturbated over her body.' He then pulled her body into the weeds and brush and went home. Upon arriving home he took off his swimming trunks and dressed and then hitchhiked into Kansas City where he hid in various places until he was arrested.

Shirley's body was examined by Dr. Pate, the coroner of Clay County, and an autopsy was performed by Dr. Buhler, a pathologist. Both of these doctors described the condition of the body but neither could express an opinion as to the cause of death based solely upon their examination of the body. However, Dr. Buhler, in answer to a hypothetical question which assumed the fact that defendant had held his hand over Shirley's mouth and nose, expressed the opinion that she died of suffocation. He found no evidence that she had been raped, although Dr. Pate found a small laceration 'near the vagina at the lower edge of the labium minora and near the hymen.'

Defendant did not testify. His affirmative defense, however, was insanity, and his proof indicated that he had not recovered, was in need of extended institutional confinement, and very likely would never recover from the mental illness he was alleged to be suffering from. There is no occasion in this opinion to give the defendant's evidence in detail. It is perhaps sufficient to state generally that he was almost constantly in trouble from the time he was four years old until the instant offense was committed. He started running away from home at the age of four, and after entering school he frequently would run away from school. His grades were poor and he often fought with the other students. He was placed under the supervision of a social worker for the Family Service Association when he was about 12, and was kept for about 15 months in the Ozanan Boy's Home where he was often in trouble and frequently ran away. In his youth he seemed interested in sex (and practiced certain acts of sexual deviation) but according to one expert he considered himself more female than male and as a boy he would often wear his mother's underclothes. After being discharged from the Ozanan Home he was placed under the supervision of the Jackson County Juvenile Court and sent to the McCune Home as a county case. His parents had him examined from time to time by psychiatrists, and from February 18, 1957 to April 20, 1957, he was a patient in the Neurological Hospital where he was given insulin shock and electric shock treatments. Various social workers, psychologists, physicians, and psychiatrists expressed the opinion that at the time of the homicide, and at various times before and after, the defendant was not of sound mind and that he was not aware of the difference between right and wrong at the time of the homicide. Other facts will be hereinafter detailed in connection with certain points briefed.

Prior to trial the defendant filed a motion to dismiss or, in the alternative, to proceed with trial in the juvenile court, which motion the court overruled. The first point briefed is the alleged error of the court in so ruling. The first reason advanced in support of that contention is that the indictment charged two felonies in one count, i. e., attempted rape and first degree murder. It is said that those two felonies are repugnant to each other and that it is error to join them. We have concluded that there is no merit in that contention. The indictment purports to charge a homicide while attempting to perpetrate rape, which, under the provisions of section 559.010 (all statutory references are to RSMo 1949, V.A.M.S.) is murder in the first degree. However, the indictment contains all the allegations necessary to charge first degree murder in addition to the references to the attempt to perpetrate rape, and the offense was submitted to the jury without reference to the charge that the homicide was committed in the attempt to perpetrate rape. Since the indictment properly charged the offense we think the allegation relating to the attempt to perpetrate rape should be disregarded as surplusage. It was unnecessary to allege an attempt to perpetrate rape in order to have submitted murder based on that theory, State v. Smith, Mo.Sup., 310 S.W.2d 845, but such unnecessary allegation did not vitiate the indictment. State v. Foster, 136 Mo. 653, 38 S.W. 721.

It is next said that the motion to dismiss should have been sustained because the indictment was not signed by the prosecuting attorney as required by Supreme Court Rule 24.01, 42 V.A.M.S. The indictment was signed by the foreman of the grand jury and an assistant prosecuting attorney. Sections 56.200 and 56.210 provide for the appointment and commissioning of assistant prosecuting attorneys in counties of the second class (such as Clay) but do not specifically set out their duties or authority. However, in 27 C.J.S. District & Pros. Attys., Sec. 30(1), p. 730, it is stated that 'An assistant or deputy prosecuting attorney legally appointed * * * is generally clothed with all the powers and privileges of the prosecuting attorney; and all acts done by him in that capacity must be regarded as if done by the prosecuting attorney himself.' Under statutes somewhat similar to the ones here involved we have held that an assistant prosecuting attorney had the authority to sign informations. See State v. Johnson, 351 Mo. 785, 174 S.W.2d 139, and State v. Chaney, Mo.Sup., 188 S.W.2d 19. We rule that the indictment in question was not invalid because it was signed by the assistant prosecuting attorney rather than by the prosecuting attorney.

There is also no merit in defendant's contention that the court erred in overruling his motion to proceed with trial in the juvenile court. The indictment was returned on July 2, 1957. On ...