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 *495 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 Italian-made 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 “I tell him T don’t have a card’ and, he say, ‘Well, I can’t serve you,’ he say ‘in the first place we don’t serve your kind here no way, in the second place we don’t serve no niggers at all, in this bar at all.’ ” Clark says he told him “I just want a beer,” but Nick says “Well, let’s go. I don’t want you in here,” 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 “just move his hands from me. And he didn’t — well then I pushed him away, so at that moment, I guess he thought I was fighting or something, then he swung on me and I swung back. * * * Then we just started fighting, just him and I, then all of a sudden a couple more guys jumped in and was helping him. One guy hit me with a chair and one guy was kicking me, I was getting the best of him, and I was trying to get out but the commotion, you know, was — so when I couldn’t get away from them, fight and all, this guy, he pulled a pistol — I didn’t see the pistol but he just— I felt the shot when he shot me. * * * When I felt the shot, these guys on me, I didn’t know what to do, I thought that I was almost dying, and so I thought about this pistol I had and I pulled it. * * * It had about four, four or five shells in it. * * * Well, after I was shot I pulled my pistol and fired, I guess. * * * I just pulled it and fired but everybody was on me * * *. I wasn’t aiming at any particular one.” 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
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second degree, that he may not complain of error in the manslaughter instruction. State v. Davis, Mo.,
The case upon which the appellant relies as requiring a finding “without a design to effect death, in a heat of passion,” State v. Colvin,
Perhaps this alone is sufficient to dispose of the appellant’s claim of error, if not it must be kept in mind that his basic claim is that the instruction is erroneous in “not including as an element the death of the victim.” This despite the fact that in his brief “The appellant admitted the killing of Nick J. Russo” and thus while he claims it is a necessary finding to the degree of the offense, “the death of the victim” was not a disputed or questioned issue. Then too Instruction 4 begins “ ‘Manslaughter is the killing of a human being not herein declared to be murder or excusable or justifiable homicide” and then after hypothesizing the assault with a gun “under such circumstances that it is not excusable or justifiable homicide.” Subsequently “justifiable homicide” and “excusable homicide” are defined. In these circumstances it is difficult to believe that the jury was misled or confused and failed to find the appellant guilty of the lesser offense of manslaughter because in specific terms it did not require a finding of “the death of the victim.”
In this connection the appellant’s third assignment is that Instructions 4 and 8 defining “justifiable homicide,” “excusable homicide” and “self-defense” are erroneous in “not conforming with the statutory definitions” of these terms, RSMo 1959, §§ 559.-040 and 559.050, V.A.M.S. In the first place the appellant cites no case or authority other than the mere language of the statutes in support of this claim. And then he points to the definition of murder in the second degree (RSMo 1959, § 559.020, V.A. M.S.) and argues, despite the quotation from State v. Gore above, that the court
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was bound to “instruct on both common law and statutory excusable or justifiable homicide.” The assignment and assertions are not self-demonstrative and in the absence of some demonstration of prejudice “(i)t is not necessary to define expressions in general use such as these (“excusable”). No explanation could make their meaning clearer.” State v. Cade,
The appellant’s other assignment is that the court erred in not declaring a mistrial because of the prosecuting attorney’s prejudicial argument to the jury that “he had filed the charge that he thought appellant was guilty of.” In connection with this assignment as with his other points appellant points to five or six other matters to which there were no objections, or objections were sustained and to other matters that were legitimate subjects of argument and these matters are not “so glaringly offensive and prejudicial” as to demand action by the court without objection and are not open questions here. State v. Goodwin, Mo.,
Questions not required to be presented in a motion for new trial have also been examined and the transcript shows compliance with all matters necessary to be considered by this court “upon the record before it” (Cr. Rule 28.02, V.A.M.R.; RSMo 1959, § 547.270, V.A.M.S.) and since no prejudicial error is found or demonstrated the judgment is affirmed.
*498 PER CURIAM:
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.
All of the Judges concur.