State v. Clark
| Decision Date | 13 March 1967 |
| Docket Number | No. 52219,No. 2,52219,2 |
| Citation | 412 S.W.2d 493 |
| Parties | STATE of Missouri, Respondent, v. Troy CLARK, Appellant |
| Court | Missouri Supreme Court |
Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Special Asst. Atty. Gen., Pacific, for respondent.
BARRETT, Commissioner.
A jury found Troy Clark guilty of murder in the second degree and fixed his punishment at 60 years' imprisonment; the trial court reduced the punishment to 45 years' imprisonment and he has appealed.
For eight or nine years Nick and Patricia Russo operated the Hanger Bar at 3800 E. 31st Street. The area residents once predominately white had become predominately Negro and the Russos changed their operation from a public bar or tavern to a private club in which the 1400 or 1500 members were admitted by card for which they paid a yearly membership of fifty cents. On September 3, 1965, about ten o'clock, Mrs. Russo was at the bar, her husband was in the office in a back room and there were three or four patrons, two sitting on stools at the bar, one about the middle and one at the back. The appellant Clark, a Negro, walked in, sat on a stool at the back end of the bar and asked Mrs. Russo for a beer. She asked for his club membership card and he asked to see the manager. Pat went to the rear and called her husband who came out and at the back end of the bar engaged Clark in conversation, there were no threats or heated words and the witnesses could not hear what they said to one another. They all agree, including Clark, that Nick and Clark started toward the front door, Nick holding onto Clark's arm as if escorting him out. Pat, facing the bar, suddenly yelled 'Nick,' and Clark whirled with a gun in hand, said 'Here's my card, buddy' and fired two shots, one striking Nick in the chest. Pat got a revolver from back of the bar and as Nick held onto Clark and they both fell to the floor fired one shot in their direction and she says that Clark from a kneeling position fired one shot at her. She handed the revolver to Tom Cook and went to call the police. At the second shot by Clark, Ted Harrison hit him over the head with a chair causing him to drop his umbrella and his gun, a .25 caliber Italianmade Delesi-Brescia automatic. Clark did not fall all the way to the floor but as he dropped his gun ran out the front door in a crouched position with Tom Cook in pursuit firing Nick's .32 caliber Smith & Wesson revolver. Clark, one bullet through his right arm and a 'grazing wound' on his stomach, was taken to St. Luke's Hospital where he was arrested.
Clark's version of the shooting was that Nick asked for his card and '' Clark says he told him 'I just want a beer,' but Nick says and 'He grabbed me, you know, by the shoulders, kind of pulled me down to the feet, kind of a motion like trying to throw me out, and I told him, 'Well, I will go, you don't have to push me out. I will be glad to go.'' And he said Nick had 'ahold of my whole back, arms and all, he was trying to, like escorted me out' and he said that he told Nick He denied firing at Patricia and finally said that he and Nick were about eight inches apart when he fired two shots, the second one, he said, 'was kind of an accident because an automatic, when you pull it, it will go off, if you don't know what you are doing, just squeeze it a little, it will go off.'
In these briefly narrated circumstances the court instructed the jury upon murder, manslaughter and self-defense. In the trial of his cause and here the appellant has been represented by the same experienced lawyer who urges three assignments of error, two of them directed to Instructions 4 and 8, 4 relating to manslaughter and 8 relating to self-defense. As to Instruction 4 it is urged that it does not include as an element of manslaughter a finding or requirement of 'the death of the victim.' The state contends, since the appellant Clark was found guilty of murder in the second degree, that he may not complain of error in the manslaughter instruction. State v. Davis, Mo., 400 S.W.2d 141. And generally that may be true but the appellant here urges that by reason of the assigned error the jury could not have found him guilty of manslaughter, the lesser offense, and therefore he was prejudiced. 'If, however, there were errors in the instruction on the lesser offense of manslaughter, possibly there could be ground for complaint on the theory that an erroneous manslaughter instruction prevented the jury from convicting of that lesser crime rather than of murder in the second degree.' State v. Brooks, Mo., 360 S.W.2d 622, 628; State v. Aitkens, 352 Mo. 746, 763, 179 S.W.2d 84, 94.
The case upon which the appellant relies as requiring a finding 'without a design to effect death, in a heat of passing,' State v. Colvin, 226 Mo. 446, 126 S.W. 448, is not too helpful because decided in 1909 when in addition to all other unnecessary complications there were at least three degrees of manslaughter (RSMo 1899, §§ 1821--1829) and as the Colvin case pointed out in second degree manslaughter the words 'without a design to effect death' were 'the very essence of this offense, this degree of manslaughter, that it must not have been an intentional killing.' In 1919, Laws of Mo. 1919, p. 256, these statutes and the degrees of manslaughter...
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