State v. Moncado

• Decision Date: 20 December 1930
• Docket Number: 30585
• Citation: 34 S.W.2d 59
• Parties: STATE v. MONCADO
• Court: Missouri Supreme Court

34 S.W.2d 59

STATE v. MONCADO

No. 30585

Supreme Court of Missouri, Second Division

December 20, 1930

Stratton Shartel, Atty. Gen., and Albert Miller, Asst. Atty Gen., for the State.

OPINION

DAVIS C.

The grand jury for the city of St. Louis indicted defendant for murder in the first degree, presenting that he shot and killed Vincenzo Vitale. The trial jury returned a verdict finding him guilty of murder in the second degree, stating that they were unable to agree upon the punishment. The trial court then assessed his punishment at imprisonment in the penitentiary for life, and entered judgment on the verdict accordingly. Defendant appealed.

As procedural errors only are urged, a brief summary of the facts is all that is required. The only two witnesses who were present at the homicide were Vitale's wife and defendant. The evidence adduced in behalf of the state warrants the finding that Vincenzo Vitale, hereinafter called deceased, resided at 1319 Blair avenue in the city of St Louis. The building consisted of four flats of three rooms each, and deceased and his family, comprised of his wife and two minor children, occupied a second floor apartment, the entrance to which was from the rear. One reached the door of the apartment by ascending a rear outdoor stairway and crossing an uninclosed porch. On November 5, 1927, between the hour of 1:30 and 2 p. m., defendant appeared at the closed door of deceased's home and rapped; the door being opened by deceased. Defendant did not enter the room, but stood in the doorway, and deceased stood in the room, about four feet from him. A conversation of about a minute's duration occurred. Defendant said to deceased, 'You have to acknowledge that your brother is dishonorable.' Deceased answered, 'How can I ever accept this? Were we not friends?' Defendant iterated, 'You must accept and you must acknowledge that your brother is dishonorable.' Deceased replied, 'I cannot acknowledge that.' On so replying, defendant took a gun from his coat pocket with his right hand, which he raised, and shot deceased, who was inside the room. On shooting, defendant jumped and attempted to climb over the railing of the porch to a garage roof, but deceased jumped, caught him, threw him on the porch, and lay prostrate on him, with defendant on his back and deceased facing him. On falling, deceased did not again move; he was dead. While in this position, defendant shot at least three times. Deceased suffered three bullet wounds, one in the chest just above the mammary nipple, passing through the thoracic aorta; a second passing through the neck; and a third passing through the left shoulder. All struck the body from the front. The wound in the chest, which lacerated the thoracic aorta, caused the death. The other two, if complications arose, might have caused death. Bullet holes were observed in the door jamb about three feet above the floor of the porch, and in the ceiling of both the room adjoining the porch and the middle room. Deceased had no weapon, nor was one found by any one upon investigation. Defendant, after the shooting, disengaged himself and fled. Three or four witnesses stated that the shots heard were in rapid succession, and one who lived next door stated that three shots only were fired in rapid succession. The clothing of deceased was powder burned. Defendant signed a statement to the effect that Nick Vitale, a brother of deceased, took defendant's wife, and on one occasion kept her away four or five days; that on the evening of November 4th four strangers entered his grocery store and informed him that he would have to give them $ 25 out of every $ 100 that he made. He informed them that he could not comply with their request. After being given $ 10 by his clerk, the men left, and in a few minutes returned, threatening to shoot them. The next morning deceased telephoned him to come to his home at 1319 Blair avenue. Defendant later that day drove there, and during the interview asked deceased why he and Nick Vitale had caused him trouble by taking and keeping his wife away from him. Deceased told him he would have to leave the country or be killed, and, noticing a revolver in deceased's pocket, he fired two or three shots and then ran away.

The defendant's evidence tended to show that, on the evening of November 4th, four men appeared at defendant's store and informed him that he would have to give them $ 25 out of every $ 100 that he made. They abused and threatened him with firearms, and took money from his clerk. One of these men was an Italian employed by deceased. On the morning of November 5th deceased telephoned defendant that he wanted to see him at his home regarding the affair that occurred at defendant's store the previous night. Defendant considered that deceased and his brother were his friends. Defendant weighed 145 pounds, and deceased over 200. On arriving at his home, deceased did not shake hands or appear friendly. During a conversation of about ten minutes, deceased began with, 'Now you know who the Vitale brothers are, I suppose you are satisfied with what happened last night.' They spoke of other matters, and discussed the fact that Nick Vitale had on several occasions taken defendant...