State v. Ryan

• Decision Date: 05 March 1973
• Docket Number: No. KCD,KCD
• Citation: 492 S.W.2d 116
• Parties: STATE of Missouri, Respondent, v. Patrick RYAN, Appellant. 26312.
• Court: Missouri Court of Appeals

Page 116

492 S.W.2d 116

STATE of Missouri, Respondent, v. Patrick RYAN, Appellant.

No. KCD 26312.

Missouri Court of Appeals, Kansas City District.

March 5, 1973.

J. Arnot Hill, Hill & McMullin, Kansas City, for appellant; John J. Cosgrove, Kansas City, of counsel.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, P.J., PRITCHARD, J., and HARRY A. HALL, Special Judge.

PRITCHARD, Judge.

By the verdict of a jury appellant was convicted of the commission of the crime of murder in the second degree of one Glen Stumbo. The jury was unable to agree upon the punishment and the court fixed the same at 30 years imprisonment in the Department of Corrections.

The main issue presented is whether the court should have included in the murder in the second degree Instruction No. 4 a finding for the jury upon the subject of provocation in accordance with the paragraph thereon in the pattern instructions prepared in 1971 by the Committee of the Missouri Jury Instructions--Criminal (MOJIC) No. 6.06. That paragraph, here omitted in Instruction No. 5, is: 'Third, that defendant did not do so in (anger) (fear) (agitation) suddenly provoked by the unexpected acts or conduct of (name of victim).' And, of course, the determination of the necessity of this inclusion (which could reduce the jury's finding to manslaughter) requires an examination of the evidence as to its sufficiency to support or require such a submission.

Betty Stumbo was the wife of deceased who was a member of the Blue Springs American Legion. She attended the opening dedication of that club on October 5, 1968, arriving about 6:30 p.m. with her husband. The two ordered a beer, went through the food line and later joined others and got a seat with six other people at a table which was located to the left of the entrance and back about one table on the right-hand side of the bandstand. This was on the second floor of the building. At about 9:15 p.m., appellant approached the table just after Bob Alliett bent down and kissed Mrs. Stumbo on the forehead, because 'I would say, well, I'm just like his mother.' Appellant said, "Yeah, you're everybody's mother," and reached down and slapped her. She raised up to such him back, having a cigarette in her hand, and he slapped her again. At that time fight number one between appellant and deceased began. A couple of blows were struck and that fight was broken up. Mrs. Stumbo and her husband walked up the aisle apologizing for the altercation, then went back to the table where deceased sat with his back to the front entrance. Before they sat down someone walked in the door and said, apparently referring to appellant, "He wants to see you outside." The group sat there and laughed and deceased got up and danced. In about 20 to 30 minutes after the first fight, appellant came back into the hall, and as if he were going to get up, deceased pushed the chair back, and Mrs. Stumbo saw appellant with the gun, blue flame, and heard shots. Deceased said, "Call the ambulance, that son of a bitch shot me." Deceased was taken to a hospital, where, after about 20 minutes he was said to be dead.

After the first fight, Mrs. Stumbo saw blood on appellant's face. She denied putting her cigarette out in his face, but did testify, 'If it burnt, it was not deliberate. I pushed him back. It was an impulse to get away from him, and that's what I did, I pushed him back.' She denied that deceased hit appellant in the back of the head with a beer bottle. Deceased was five feet, five and a half inches tall and weighed about 165 pounds.

Edward Wallace Butler was present at the time of the first fight and was then dancing with his wife. He heard a scuffle and glass breaking, but did not see, at the time, who was fighting. After Edward sat down he saw deceased come back and sit down at the table, and saw that he was one of the participants in the scuffle, but did not see who the other fellow was. In about 20 minutes he saw a man walk down the aisle and hit deceased with what looked like his hand, and deceased fell off on the floor. Everybody at the table jumped up and Edward could not see any more but heard three shots fired shortly after deceased was struck. Edward then saw a man going backward toward the door with a gun in his hand motioning people back with it.

Harold William Johnson was seated at the table with Mrs. Stumbo and deceased. He saw appellant hit Mrs. Stumbo and saw her hit him back. Deceased jumped up and said, "Hey, what's going on here,"; then appellant struck him and they got into a fight down on the floor for a minute or two. Appellant 'looked like he had come out of a meat grinder.' He was black and blue all over his face--deceased hit him several times. Harold did not see a beer bottle, but deceased, who had been a prize-fighter, hit appellant several times with his fist, being on top of appellant on the floor. In about 15 or 20 minutes Harold saw appellant approaching from behind him and deceased. Harold said, 'Look out, Glen, he is back with a gun. " Deceased's back was turned to appellant, who hit deceased on the head with a .38 snub-nosed revolver. Deceased jumped up, started to turn around and appellant started shooting, three shots.

Appellant's sister, Margaret Joan Hefley, was at the American Legion hall, but did not learn that appellant had been in a fight until it was over. She went with appellant to the front door where she talked with him about going to the doctor to have his face fixed. She thought his eye was badly damaged, and his suit, shirt, eye and neck were extremely bloody. Appellant asked her to go back in and tell deceased to come out which she did. Deceased told her he was some type of a fighter and that her brother had just better go on. In another vehicle she followed appellant, who was living with her, and saw him next at the American Legion lot where he had a gun in his hand, and had changed his shirt. Appellant was then very angry. Margaret did not go back into the hall with appellant, but thereafter heard one or two shots. Later she gave what she assumed to be her brother's gun to the police. On cross-examination, Margaret testified that she had heard that deceased had a reputation in the Blue Springs area for being a violent, quarrelsome and turbulent man. Appellant could not have been gone for more than 7 or 8 minutes before he returned to the American Legion.

Charles Robert Alliett, whose nickname is 'Utlo', was present when the events here in question occurred, but was drunk. He was sitting at the table where deceased got shot, and heard three shots. As to the first fight, Utlo remembered appellant coming over and asking him to join him and some other people, and Mrs. Stumbo turned around and put a cigarette out in appellant's face. He did not see appellant strike Mrs. Stumbo. He knew that at times deceased had a bad reputation for being quarrelsome, and being violent and turbulent.

Aubrey L. Lewis helped break up the first fight between appellant and deceased. There was a glass knocked off the table to the floor where it split down the middle and from which appellant got cut on the face. Aubrey did not see appellant shoot deceased, but saw him with the gun holding all the people back. Appellant was then dressed differently, 'I think he went home and changed clothes and washed the blood off of him.' It was around 15 minutes after Aubrey helped break up the fight when appellant returned with the gun.

Other witnesses for the state, James Gregory McGuire, John Barry Moore, William Parker, Dorothy Jean Parker and Roger Lee Lane, testified with some variance but substantially the same as the foregoing versions of the incidents of the night of October 5th.

For appellant, Shirley Lane, wife of Roger Lee Lane, testified that with her husband and Bob Alliett, she attended the building dedication of the American Legion. She saw appellant go to the Stumbo table where he squatted down beside Bob trying to get him to come to the Lane table. Mrs. Stumbo then reached over and burned appellant on the right side of his neck. Appellant raised up and was turning away when deceased hit him from the side, then they started fighting. Deceased had a reputation for violence, turbulence or fighting. Appellant did not strike Mrs. Stumbo, but merely pushed her hand. Shirley did not see the shooting. It was 10 to 15 minutes at most before appellant came back to the American Legion after the first fight.

Appellant testified that he owned the weapon in evidence, having had it for about a month. As to the events of the night of October 5th, his version was this: He had gone to the American Legion alone and met some friends there. He went over to the Stumbo table to ask Bobby Alliett to come to meet some people. Appellant was then kneeling down on the left side of Bob, between him and Mrs. Stumbo, who said, "Get away from here, you son of a bitch, and took a cigarette, a lighted cigarette that she had, and jambed it into my neck here." He denied slapping her. He jumped up and started to walk away, and that was the last thing he remembered, being knocked unconscious. He came to and remembered that deceased was still beating him and his arms were stretched out and he could not move them. Then he 'went out again,' and recovered consciousness when he was out in the parking lot. Appellant was living with his sister in Blue Springs, and he then went home. The first thing he did was to take off his coat and shirt, which were bloody on the front. He remembered putting on a clean shirt, starting back out the door with the intention of going back up to the American Legion, and then remembered the little gun in his flight bag. He reached down and got the gun and stuck it in his pocket.

As to his purpose in going back to the American Legion Hall, appellant testified: 'A. I wanted to go back there and talk to these people. It's my club. I was a member there. And I...