State v. Chambers

my opinion, requires basic fairness taxes, the state refund these sales which it pro- will not do unless this action

ceeds, therefore, respectfully I dissent.

I would plaintiffs’ sustain for sum- motion

mary judgment and would order the trial proceed

court to notification the oth-

er members of the class and then with as-

sessment of respective their refunds after

the class is closed. Missouri,

STATE of Respondent,

Freddy CHAMBERS, Appellant.

No. 58407.

Supreme Missouri, Court En Banc.

July 14, 1975. Danforth, Gen., Atty. C. Dan Sum- John

mers, Atty. Gen., City, for Asst. Jefferson respondent. Berry, Haile, Kenneth Nolen W. W. Neosho, appellant.

HIGGINS, Commissioner. by a Freddy Chambers was convicted four stealing jury of count jury counts of punishment agree his was unable to years’ punishment fixed at ten imprisonment stealing at twen- for the ty-five years’ imprisonment on count each of murder with terms to consecu- run ren- tively. judgment were Sentence and 560.156,560.161.2(2), accordingly. dered §§ 1969, V.A.M.S.; 559.020, 559.030, 24.04, 27.03, Rules V.A.M.R.

Appellant does not the suffi- ciency of to sustain his evidence convic- tions, reasonably find and a September 4, 1973, that: On Ray together Collins were from about 9:00 p. m., Sep- until after 1:00 m. sometime a. They drinking, tember had been “to and defendant announced intention go get Hi Bur- pickup at Dollar Joe Joplin trum’s” Range at 4800 Line south of County, in Newton Missouri. When at Com- arrived Burtrum Brothers Motor pany, out of defendant “busted window pickup, chain it” and hooked a onto pulling the road pickup “started down * * * real fast and all over the road.” Instruction No. 10: pickup Collins steer it and you Jury “The Court instructs pickup towing defendant was with his find beyond and believe from the evidence asportation, Ford During Torino. doubt a homicide reasonable did pickup oncoming with an collided automo- occur while the defendant was bile. Collins were observ- Defendant and Newton, County motor vehicle in of the truck, pickup a in theft of the ed the Missouri, Jury State of cannot the find 6-cylinder }^-ton, equipped Chevrolet guilty of Murder the Second body, by camper a Burtrum. He Joe Degree say your and should verdict.” glass breaking, heard the sound of after pulling Torino he observed Ford stealing Instruction No. 13 submitted the camper Range on Line pickup north count, 14, IS, and and Instructions Nos. dark; (U.S. Highway 71). there It was predicated in conventional on form vehicles; lights were no on either Instructions Nos. 9A and submitted and, Line, proceeded Range as down murder, four counts second re- degree, rapidly, “they rather accelerating sulting from pickup the assault weaving to side the road.” from side occupants truck on each of the four in the several They the center line times. crossed Valiant. stop unsuccessfully He the thieves tried Appellant charges (I) the court erred by firing pis- or three from his shots submitting the stealing count and the four crash, car, heard a tol. He followed a murder, counts of the- second His pickup had saw that truck crossed ory is that “the steal- hit into lane and a Valiant the southbound ing, being part of felony-mur- essential a quarter of automobile head on about a der, counts, they merged into the murder Range 44th and mile the car lot at from being greater charge. A conviction persons in the Line. There were four Val- one felony would exclude conviction on iant, result all of whom died in or the other beTo tried and convicted the collision. stealing both felonies [the The collision m., occurred around 1:00 a. degree] is in doc- violation September 5, 1973. trine of double jeopardy.” others, Among gave the court Instruc- general rule whether tion No. 9A: that a defendant not be tried twice offense, Toombs, for the same “The Court instructs the that under applies in Mo. 34 S.W.2d 61 the laws of this State where a homicide this case charged where defendant was shall be committed while perpetrating the felony-murder under convicted rule theft of a motor vehicle it is deemed Mur- stealing felonious murders in four der in the Degree. Second perpe- committed case, tration Jury of the theft. “In if the find and this be- beyond a lieve from the evidence reason- propositions There are several occurred while able doubt that homicide bearing on question. the resolution of this a motor the defendant was vehicle Although split single the state cannot Newton, County State of Mis- prosecute parts, crime and it in ag., e. souri, of such theft then conviction for procuring execution of a premeditation as stands in hereinbe- lieu false stock certificate is a bar to subse defined, Jury fore and the will warrant- quent prosecutions procuring execution guilty of Mur- finding ed in the defendant certificates, signed of other where all were Degree and der in should so the Second in a single issued transaction at a sin- say your verdict.” intent, single gle request and with a fel- plus deliberation charged, these nevertheless, Toombs, supra; charged. State ony-murder, first one stat- may by violate more than one act (Mo.1973); Jenkins, 494 S.W.2d than one ute or commit more (Mo. banc Jasper, Moore, make under- does not The rule the offenses The test whether felony-mur- element of felony an lying ex- charged the same has been are one and an additional ; merely provides der pressed offense necessi- each requisite to whether felonious proving the means element proof supra; fact or Jasper, tates of an essential intent for required by States (Mo.1972). the other. United Shuler, 486 S.W.2d (8th 1970); Phillips, 432 F.2d Cir. Defendant Chambers States, F.2d Cardarella v. United stealing a charged with and convicted of denied, (8th 389 U.S. Cir. certiorari which, vehicle, un the elements of motor 882, 129, (1967). 88 S.Ct. L.Ed.2d 560.161, supra, der and Sections 560.156 It is that the same evidence immaterial property taking an intentional prove re- utilized each offense if each to in and with another without his consent quires proof or element of an essential fact use there deprive the owner of the tent to required support on the to a conviction of, Webb, (Mo. 423 S.W.2d 795 Johnson, 284 United States v. F. other. murder, ; 1968) and four second counts affirmed, 410 Supp. (W.D.Mo.1968), degree, which under Sec the elements of denied, (8th F.2d 38 Cir. certiorari 559.020, supra, premeditated, tion are the 63, 24 90 S.Ct. L.Ed.2d U.S. willful, taking a human and intentional States, ; su (1969) Cardarella v. United aforethought, life malice with Moton, pra; The Jewell, (Mo.1971). (Mo. As observed in State v. thus dis elements of the two offenses are Toombs, supra, 34 l. c. offenses underlying of the The commission similar. ele- are not identical “where an essential felony, stealing, is not an element by one stat- ment of the offense denounced re murders in second With of- not an element of the ute is essential murders, underlying spect to the * *." * fense defined in the other See prove or state of the intent serves to States, Blockburger also v. United 284 U.S. murders; proof necessary mind to 52 S.Ct. 76 L.Ed. 306 felony proves both it of the restated, whether, The is now charges. to the murder necessary the intent case, of this circumstances necessary to Proof of different elements of, charge is an essential element or lesser evi the same though each even within, felony-mur- included offense of The may both offenses. go dence prohi- bring ders as to within the case taking proof of a stealing requires fense of Toombs, supra. bition of State v. re property; the offense of Thus, killing. quires proof aof permits the felony-murder rule murder, offenses, de stealing and intent con necessary felonious to a murder separate and merged, but are gree, are not perpetration of viction to be shown fact. State distinct in law perpetrate attempt Proof Toombs, supra; Cardarella United intent to commit Blockburger United States, supra; raises presumption a conclusive the States, supra. possessed feloni recognized the ab- support ous intent to cases conviction for Several the re situ- murder, e., jeopardy analogous sulting intentional, sence of double willful, i. Bobbitt, premeditated, malice afore ations. thought, felony-murder, defendant was first “ * * * murder, de- may first

charged acquitted It attempted arson are commit- gree, perpetrated during same both offenses transaction charged ted, separate and distinct subsequently yet remain of a He was house. attempted offense. It arson are not the same of the offenses and and convicted either offense Upon may defendant con- be that on a trial for appeal, the house. admissi- jeopardy be- to the other offense is placed evidence as tended he was twice gestae, but this prose- part of res the state ble as a cause in the murder case them the same offense. defendant was does not constitute theory cuted on killing separate are not to offenses degree, for Distinct and guilty of they happen to merged attempting be held because burning or the victim while house, grow out of the same transaction. was now bar- burn and the State him for the same prosecuting red from Mowser, 92 cites “Defendant e., charged burning, i. that the arson now 4 A.L.R. 106 A. N.J.Law evidence in the arson offered as was the seeming- position. That case sustain his necessary element and it was a murder case that the occur- ly postulate predicated on held that ac- case. The court of the murder issued was the offenses rence out of which charge was no bar quittal the murder This inseparable transaction. underlying arson. for the prosecution Mis- rule.’ called the ‘same transaction Moore, defendant was supra, In State souri, decisions, according prefers to our murder, first charged convicted rule, offense separate or several follow the subsequent- He degree, of one Heller. is not offender and we have held that an underlying of the ly charged convicted responsibility for from to be exonerated murder Heller out of which the robbery passions or his desires acts because jeop- plea of double In refusal of arose. or persuade impel commit two or him to posi- the Missouri ardy, court reviewed or oc- a transaction more offenses jeopardy: tion on double 337; Martin, 76 Mo. casion. ** *, as “Our Constitution as well Bobbitt, Mo. law, proscribes putting the common 953; Temple, Mo. S. again (or twice) jeopardy of or lib- life general subject W. rule on is erty any person for the same offense. Law, page Ruling stated in 8 Case § Certainly, again defendant had been single reading: transaction ‘When first-degree tried for kill- offenses, wherein constitutes or more Heller, ing pleaded he could have suc- in- necessarily is not lesser offense cessfully jeopardy, former for he would greater volved in the and when the facts have been tried for the same offense. prosecu- necessary to convict on the second * * * although it is unnecessary so necessarily tion not would convicted decide, for questions are first, not here in- prosecution on the then the first will * * * volved, plea jeop- of former not be a bar to the second.’ ardy probably would be sustained as Richardson, to the l.c. 907. Cf. State v. grades lesser or degrees lower or homi- (Mo.banc where the necessarily cide or assault included in act toward commission of at- apposite murder, to first-degree tempted robbery as such was the identical assault second-degree murder, etc., manslaughter, upon charge assault to maim lesser degrees are included within without malice was based where de- the same offense. But murder attempted fendant been rob- had convicted bery not subsequent are robbery prosecution same nor does for assault one necessarily emanate from the other. intent maim was violative of the their against While rule common double jeopardy; essential element and State v. assault, yet Neal, that of they are distinct and S.W.2d 544 (Mo.banc 1974), separate statutory where offenses. charged one Walton hu- dangerous to foreseeably herently Count I was the result of or the assault upon committed Walton and iden- was the man life.” charged

tical assault in Count There III. appellant’s this contention Related splitting single was thus a crime of plain the court erred charge error prosecution robbery and of it in both and 10 because (III) in its instructions 9A Counts I III was violative of the rule properly not state the law “did against jeopardy. double its or manner inherently fore- had or foreign juris commission from citations Appellant’s human life.” overturning seeably persuade dictions do Carroll, foregoing authorities. State v. is that argument when Appellant’s (1972); State N.C. S.E.2d applied under Sec- felony-murder rule is Thompson, 280 N.C. 559.010, enu- supra, there the felonies tion Henderson, 350 and Colle v. (1972), merated, arson, robbery, burglary, rape, interpret felo (W.D.La.1972), F.Supp. 1010 underlying felonies for mayhem, as underly rules so as to make the ny-murder possessed ny-murder, element or less an essential felonies danger human inherent foreseeable itself; offense er included life; applied under Section but when Thomas, N.J.Super. those supra, felonies other than appellant’s reached A.2d 391 felonies enumerated Section 559.010as applying a evi desired result “same degree, must el opposed dence test” as to the dissimilar having com- charged and submitted been separate test ements or or several offense inherently or foreseea- mitted in a manner Toombs, prevalent Missouri. life; oth- bly dangerous to human and that States, supra; Blockburger v. United su aris- erwise murders pra. felony situations ing from nonviolent incongruous produce unintended and prose- summary, homicide results. rule, felony-murder under the cuted posi- again, support his become, Appellant, fortiori, felony not other does foreign jurisdic- tion with citations from of merged in or an of offense element Satchell, tions, g., People 6 e. v. Cal.3d prose- and the defendant (1971); Cal.Rptr. 98 1361 489 P.2d both and the under- the homicide cuted Pavlic, People N.W. v. 227 Mich. felony being placed in without twice lying Thompson, supra; (1924); State v. jeopardy if the offense conviction each State, (Del.1967); 230 A.2d 262 v. proof re- requires of essential elements not Jenkins People Golson, 32 Ill.2d 207 N.E.2d quired for of the Ac- conviction other. Lilliock, (1965); People 265 Cal. cordingly, convictions this defendant App.2d Cal.Rptr. He against not violate the rule double did asserts that Missouri re- “in all cases because, demonstrated, un- jeopardy by appellant, searched facts such were derlying stealing required proof as to fall within one or more the afore- differing of essential elements from or not authority,” mentioned lines g., e. felony-murders to the in the sec- Simpson, 173 (Mo.1971), 471 S.W.2d ond tape where the felon an stole automobile Appellant (II) contends that the infor- player and shot who the victim was observ- fatally theft; mation was defective and insuffi- Lewis, Mo. charge felony-murder cient to in the sec- 201 (1918), two where felons who degree ond it did not charge because the had been automobiles armed vehicle, felony, stealing a officer; motor and police Beal, killed a or its manner of commission in- being “as (Mo. S.W.2d 509 banc 1971), tute a continuation

fleeing pursuing po- felons fired shots at car, hence be a lice sufficient sustaining officers collided with another basis for first degree killing occupant. felony-murder is charge. Also cited Beal, Glover, supra. How- [470 509]. ever, contrary to appellant recognizes position, “does defendant’s acts limitation, use defendant it as a and Beal [although] fleeing in after the officer acknowledged deciding shouted plainly in to them halt aft- er he gun fired Felony-Murder or not in whether to use the an attempt to halt them also in any given Rule sustain a charge situation one should con- of resist- * * ing lawful arrest dangerous’ sider whether ‘the is *. Since resisting arrest not one of disregard ‘betokens a specified reckless of human the felonies in § life.’ evidence thereof would have justified a submission to the case The in difficulty appellant’s posi jury by an in instruction on murder First, tion two-fold: suggested con degree finding by second based on sideration whether underlying felony jury that in the homicide occurred connec- dangerous or disregard betokens a reckless resisting tion with the offense of arrest.” life, by satisfied in this case the ev 486 S.W.2d l.c. [1-3]. showing idence that the felony-murder in the This distinction of stealing a motor vehicle was accom degrees and the lack first and second plished by towing major it on a highway in by ap- any argued requirement such as darkness lights, without weaving from side of fel- pellant in submission charge side, and after drinking. The collision ony-murder, well stated and resulting deaths attest to the violence 139, 62 Lindsey, Mo. S.W. and danger in such actions. “ parties 2d (1933) ‘Where :

engaged commission of one difficulty is il- [559.010, Appellant’s second in section felonies enumerated Jasper, accompanies by State 1969], lustrated RSMo if a homicide four armed enterprise, whether (Mo. and is to the banc incidental they emerged not, As the first robbed market. it is murder in men intended hand, they were observed is to some guns degree; if the intention commit police a marked vehicle. enumerated in officer other than those using homicide, fled, section, Beal uninten- although robbers to them tional, The officer called un- an automobile. is murder halt, A [559.020, fired shots in the air. der Section 1969] ** car, speed followed until high Again, chase *.’ the illustration Beal, with to felony” driven collided another “other underlie sufficient noting In occupants ny-murder of its was in the second was the killed. felony-murder, jailbreak necessarily sufficiency of a case of not hu- inherently foreseeably dangerous observed: degree, second “ ** * Robinett, recognizes com- Missouri man also life. See State v. felony-murder (Mo.1926), felony-murder mon law rule under which where degree, successfully with homicide committed in founded on connection intoxicating other than those the felonious enumerated Sec- manufacture liquor second de- killed mov- tion 559.010 murder the victim was while gree, place which the absent other evidence from his mash of concealment. necessary to a determining could find the elements In whether defendant was en- finding degree. gaged in of murder in the first the felonious of li- manufacture ** * mash, quor moving flight by and Beal while his the court ob- defendant served, apropos present from the site of consti- “The case: legislature to the “every an intent that kill- that, common-law rule is after commis- ing,” used Section felony, criminal, sion of a if the in at- 1969, V.A.M.S., defining manslaughter, tempting way to make plunder, with his in- killing separate means each such is a homicide, cidentally commits a is guilty he 559.020,defining whereas Section Homicide, p. Wharton 186.” is not specific. 279 S.W. l.c. 699 [4]. support of his assertion that State v. these authorities is The rationale of Whitley overruled, is, appellant should be de- felony-murder in the second in cases of again, rely upon forced to from cases for has a criminal gree, formed State, jurisdictions, eign g., e. Crocker v. felony; underlying intent commit the 204 Tenn. (1959); S.W.2d 234 he its proceeds perpetration, and if he Wheelock, 216 Iowa 250 N. his consequences to the should answer (1933). Similarly, support W. 617 intentions, accountability for hom- including his multiple assertion that felony-murders the under- icides that occur incidental to should be single offense, but a he cites lying felony. ought He not heard Mills, 240 A.2d 1 say that N.J. pur- he entered into his felonious State, and Thessen v. 508 P.2d pose the intent to without cause death (Alaska 1973), single held the perpe- because the he intended to transaction and not its results to be the of trate supposed was not to result death. fense. It is because purpose felonious that another dead. See in addition appellant, case In this Shuler, (Mo.1972). 486 S.W.2d 505 stealing, felonious charge Appellant (IV) contends that the court separate four charged and convicted trying submitting erred in the four human of four offenses, the murder distinct counts of murder where arose “from separate offenses beings, and those four one act or transaction.” He stated the they arose though even committed single to be “whether a act acts of the same and in course out of supplied by intent resulting a fiction of law felony. Ac constituting the in multiple deaths is one offense or a num- con Whitley, supra, is cordingly, equal ber offenses to the number of and author argument trolling. Appellant’s deaths.” tests, g., e. different apply ities which test, State v. single transaction Jersey New Appellant concedes that State Whit Mills, supra, persuade do ley, 382 (Mo. holding appel in answer Whitley is irrelevant that there shall be as many offenses be over that it should lant’s contention manslaughter as there are beings human Moton, supra, which ruled. See State killed, whether by several, one act or of defendant convictions affirmed two “seemingly question.” answers this He as at service station robbery of two armed serts, however, that State Whitley “is one act but two theory of tendants on the not relevant to bar, the case at and even if both robberies oc separate offenses relevant, it overruled,” should be and that simultaneously in a same or almost curred multiple deaths arising under felony- the v. also See State single transaction. murder rule should held single to be a certio (Mo.1973), Smith, 257 offense of 1031, State, denied, 414 U.S. v. rari Smith In support of his assertion of irrelevan- (1973), which 38 L.Ed.2d 94 S.Ct. appellant cy, argues that State Whitley v. two convictions affirmed did not address the of multiple his wife man and felony-murder of deaths resulting from an offense requiring during killings the occurred both the intent; element of and that it imputed rape of his and the of the husband transaction, C., wife, single WELBORN, a same or concurs. separately were both offenses when tried PER CURIAM: substantially proved by the evidence. same trial Note also that the of defendant HIGGINS, by opinion The Division One V.A.M.R., Rule Chambers under C, opinion adopted is as Court satisfy objections Justices Banc. en Brennan, Marshall, dissenting Douglas, and “Although charges in both Smith State: HENLEY, MORGAN, HOLMAN, * * * arose same transaction out of * DONNELLY, * * JJ., FINCH concur. prosecuted episode, they * * * proceedings. in That separate SEILER, separate J., dissents dis- C. grant petition requires we senting opinion filed. * * * * * * reverse, * * * Jeopardy requires Clause Double J., BARDGETT, dissents and concurs in except extremely prosecution, limit- separate dissenting opinion Seiler, C. J. here, present join ed ‘to circumstances not de- charges against at one trial all SEILER, (dissenting). Chief Justice grow single criminal fendant that out of act, occurrence, portion I respectfully transaction.’ dissent from the episode principal Swenson, opinion allows Ashe v. U.S. S.Ct. which Carpenter any felony commission of be the basis L.Ed.2d 469.” also See State, degree for a (Mo.App.1974). S.W.2d 702 conviction. my unsound, holding is, opinion,

This inconsistent doctrine Finally, appellant charges the first serves to plain court with error (V) in its Instruc “beyond any extend that doctrine rational tion No. 6 which covered pre defendant’s designed to function that serve.” sumption of innocence and the standard of People Washington, Cal.2d reasonable doubt. The instruction and at Cal.Rptr. 442, 402 P.2d 130 tack are the Davis, same inas S.W.2d 489 (Mo. 1972), where the legislature has Our enumerated those complaint was noted have been “fre perceived felonies be so in- quently raised and found not meritorious.” herently life that to human Lovell, See also State v. when a occurs the com- homicide (Mo. banc Atkins, United States v. thereof, liability for in the mission (8th 487 F.2d 257 Cir. 1973), considered supplied fact favor, this matter with some disapproving felony alone, 559.010 V. Sec. “the alternative statement that reasonable was modeled after A.M.S. Our statute doubt means a substantial That doubt.” Pennsylvania’s, Meyers, court, however, “say refused to supreme * * * giving of this instruction consti explained it fol- that state has ** plain tuted error 487 F.2d l.c. lows: “. cases of homicide [I]n See Yarbrough, also [9]. viz., offences, of certain (Mo.App.1974). This 92[1] arson, rape, robbery, all idea burglary, longer matter should no arise in Missouri intention was excluded. The act because MAI-CR 2.20 instruc engaged such the malefactor was given tion this subject and it nature, crime, involving deep so complaint by cures the omission of the turpitude mind, protection against questioned equation. peace and which was to the citizens, Leg- good our welfare of all Judgment affirmed. of no islature the intention as considered

835 consequence, decreed death accordingly and was the nature In of these cases none .”, . . penalty of offences felony to be the ever at issue. We underlying & S. Flanagan, involving 7 Watts felo do, however, Commonwealth v. cases find two 415, is ir- Accordingly, dangerous be (Pa.1844). 418 said to nies cannot be intended, Robinett, death is 279 relevant whether the In human life. to felony is killed the enumerated commit- was whether the victim (Mo.1926), 696 S.W. manner, con- to ted in or on the their effort during a by defendant’s son trary illegal in a manner calculated manufac is committed transport (from mash death, place such a risk of as where a of con felony) to avoid liquor ture — a no precautions Wright, to insure that arsonist takes 337 Mo. cealment. State burn, intends to evi building 441, one is in the he was (1935), there 7 neverthe- during but a concealed therein is “robbery” dence that a are viewed staged less These felonies killed. was order victim was killed abstract, only original felony. utilize company insurance defraud an —a liability in the cases, for murder that a felony to create court held In both these if might 6.16-6.19: degree. degree first MAI-CR See murder conviction second com- that the defendant was dis underlying finds rest felonies without mitting the enumerated felonies one of nature of those felonies. cussion as to the thereby, are instructed Sharpe, death resulted But see State v. guilty of murder find the defendant con (1930), where there was significant It is also a

the first whether there was flicting evidence as to degree our prior note that held that larceny, a the court provided that a homicide larceny, jury could only murder statute the crime was degree when shall be murder in the first man find that the homicide any ar- in the committed slaughter. son, other rape, robbery, burglary or Robinett, supra, and State v. Statutes,

ny. Sec. Missouri c. General supra, Wright, appear to be aberrational 1879, however, (1866). By this section incorrectly decided. Neither amended, substituting the words had been were fel- in those cases felonies Mis- felony”. mayhem” “or for “or other law, not so could at common onies Statutes, souri Revised Sec. “murder at conviction supported a statute, degree Sec. murder Our our fall within common law” such V.A.M.S., includes 559.020 RSMo People statute. degree murder See law, murder at common “All other kinds of Pavlic, 199 N.W. Mich. manslaughter or not herein declared to liquor defendant sold where the homicide . justifiable or excusable amounting to under circumstances in the sec The doctrine of purchaser drunk days; became those extensively used ond has not been stated exposure. The court and died of however, it asso Missouri; generally, be murder homicide See, exam ciated with violent crimes. was not com- underlying crime since the (Mo. ple, Hayes, 262 directly State not itself mon law up” re “beat victim (conspiracy to 1924) also life. naturally dangerous to See ; Lind death) sulting in victim’s Exler, Pa. 89 A. Commonwealth v. sey, (1933) 62 S.W.2d Mo. from died the victim (1914), where prisoner fellow to death (defendants beat a the commission resulting shock from ; Hollo escaping jail) while from that the un- rape; held statutory the court (1946) way, Mo. since statu- intended death was not jailbreak); (sheriff killed rape law tory was not common 1972) (Mo.banc Jasper, 486 S.W.2d noted particularly This case should resist defendant was (victim killed while modeled statutes were since our ing arrest). Mey- Pennsylvania, after those of

ers, unsuccessful supra. attempt burglary soundness of these deci- commit The aptly sions is which he had by Kentucky illustrated a caused the loss hu- of life, man court, stated, however unintentionally which . Under our and un- . “. statute, expectedly, put wrongdoer a removal corner stone is no worse of position, punishable legal by peniten- theory, a short term in the than if he had If, tiary, felony. committing burglary therefore succeeded in without a at- time, present tempting this At the death were to result homicide. with conspirator category by to one his fellows removal of most felonies from the acciden- him, capital crimes, tally dropping upon no of the reason for the rule the stone Perkins, has ceased to The apply Christian this exist.” Crimi- court would hesitate ”, e., (2d limitation . nal Law 44 1969). . . the death would ed. i. Commonwealth, be not murder. Powers v. Thus, general with the trend toward mit- Ky. (1901). 61 S.W. 735 igation in the of punishment harshness for lows : by doctrine is Wharton on and there is’ ny Furthermore, cide was either murder sense, whether risk his law, support a conviction of murder at common dangerous felonies in the manner a different facts to the primary purpose “Since But more death, murder is ed. he a rule 1900). The relation of became guilty life, or not a logic. Blackstone Comm. were no which important described genesis would-be felon was Homicide, it was relatively unimportant supported by history, all felonies At includes particular than of the common aof degrees than the by he doctrine of rule, Perkins as capital only inherently intended. felony (3d manslaughter, law, felony 95-98 punishable these ed. willing crime in abolished common (Lew- homi- fol- to Director of any ny and which causes death amounts to likely in itself to cause death done caused gether, purpose of committing murder, it would be it many gina any act done with intent to commit a felo- lish courts statutory felonies which were unknown to as those at an unlimited felony murder and not of the same ^[1920] creasingly doctrine, act known felonies, said, death, Homicide Act of A.C. 479. Serne, irrational and unfair. The began common “ Public Prosecutions v. . should be murder.” See also felony ^[1887] be to impose limitations on Eventually, law, reasonable to murder doctrine alto- instead of dangerous 16 Cox Cr.Cas. leading addition rule felony Sec. application case of Re- saying Parliament became in- character life, say for Beard, many Eng- that mentioned, by the doctrine was to bound deal with the are of course case in We 559.- expressed which the in Sec. homicide was caused in an at- notwithstanding tempted failed. Conviction purpose. has forfeiture, original It resulted in total absence of its remaining loss of life goods, and lands that the been well stated nothing existence justification been by establishing added continued guilt deter- a second added attempt At the doctrine to furnish however, commit felony, felonies of those mis- rent to the mere very demeanor at a likeli- by common nature create law. Hence to their hold which guilty capital life,1 making danger by of a the fel- crime one who made an hood of fact, however, proof 1. In there is homi Challenge homicide. The Crime resulting cides from these felonies Society, are much Report by Free the President’s Com frequent might supposed. less than Ac mission on Law Enforcement and the Ad cording to the District of Columbia Crime ministration Justice 19 See also Commission, example, less than ALI, one half of Code, (Com Model Penal Sec. 201.2 percent of the robberies and ment, about one 9, 1961), Tent. No. Draft earlier percent accompanied rapes forcible statistics to the same effect. nearly all significant note that to It is is when death murder even for on liable the place limitation jurisdictions some v. People accidental. unintended con- support a murder can felonies which P. 489 28, Cal.Rptr. 98 Satchell, 6 Cal.3d in- be either viction; felonies must State, A.2d 2d (1971); Jenkins man- in a dangerous or committed herently (Del.1967). Am.Jur.2d, life. See dangerous ner to deterrence, however, of The rationale 73; Annot., Felony-Murder Sec. Homicide felony any of inclusion justify cannot the 397; Felonies, A.L.R.3d —“Dangerous” fel- the If support a murder conviction. to Note, Association of 35 Journal added dangerous, the ony inherently is not America, Lawyers supra. of Trial not deter liability will of sanction pre- is be dangerous” test to “inherently unlikely felon, highly is potential for it the test the “manner commission” ferred to of occur death will anticipate that he will principles the in is with that it consistent commit that he will the fact solely from first de- murder in the governing felony State, at supra See Jenkins is ir- e., the commission gree, manner of i. applica- discussing the Holmes, in Justice felony is relevant and viewed a sit- to felony murder doctrine tion of the Furthermore, the manner of abstract. for chickens who shoots uation where one mean- devoid of commission test becomes accidentally purpose stealing them hindsight; if a death oc- by virtue of stated, chickenhouse, kills a man curs, immediately consider that one can pre- is to the rule object . “. . If dangerous in a man- was committed accidents, acci- it should make vent such would not have ner—otherwise the death murder, not killing dental with firearms supreme occurred. And as California steal; effort to killing accidental stated, aptly frag- “. . . To so stealing, it object prevent is to while if its mentize the ‘course of defend- conduct’ every hang to one thief better would do felony-murder applies ant rule ”, Holmes, The thousand lot ... segment may if any be that conduct Law (1881). Common dangerous life considered to would widen beyond It then rule calculation. would Since the felonies enumerated our apply specif- commission first degree murder statute are inherently felonies, ic which are themselves dangerous, it inconsistent there- life, any but to the allow any felony support a con- ny during which defendant have acted viction for murder in the second endanger as to . such manner life. Such a holding gap would “widen be- number or nature the con- [T]he tween moral culpability and criminal liabil- texual incorporat- elements which ity” and extend the doctrine of expanded ed into an felony terminology beyond any far rational it function been, would be We limitless. and re- designed is People Washing- serve. upon such an main, unwilling to embark ton, supra. Many severely writers have People felony murder.” sea of uncharted criticized the rule and strongly advocated 39-40, Cal.Rptr. at Satchell, supra, against expansion. its example, See also State See at 1367-1368. P.2d Perkins, A Re-Examination of Malice Moffitt, 431 P.2d 879 Kan. Aforethought, 43 Yale L.J. adopt- supreme Kansas court of Wechsler, (1934); Michael & A Rationale dangerous” test. “inherently ed the Homicide, of the Law 37 Col.L.Rev. Note, bar, (1937); 713-715 In case at Journal V.A. Lawyers stealing, Association of Trial Amer- Sec. (1974); Institute, M.S., ica 296 enumerated Law is not American and, Model Code, Penal unlike rob- in the first (Comment, Sec. 201.2 Tent. Draft confrontation bery involves direct 1961). No. property being with the whose tration thereof. this case the taken, stealing felony dangerous is not a instructed in complicated no more terms life when viewed in the abstract. Automo- than these. mind, With this in the case at bile theft most common bar becomes indistinguishable from State today, ought crimes not to be the basis Neal, 1974) (Mo. banc for a conviction of murder in the second Richardson, 460 and State v. degree, especially rel- when there more held (Mo. In those cases was banc evant criteria found in our man- defendant not be convicted slaughter properly apply to statutes which which con- both of assault by the the state of mind demonstrated de- the victim inciden- stituted the violence to under of this It fendant the facts case. robbery. Similarly in tal and unjustifiable give unnecessary both Parsons, (Mo. S.W.2d 430 any legal fiction of that a defendant could it was held pos- presently than it sweep more broad a not be convicted both murder and sesses; perfectly capable the law is bombing which caused the death punishing defendants for reckless and wan- The victim. court stated that “. . .

ton conventional homicide conduct under necessary act toward the commission of reasons, For I re- these statutes. the bombing identical act neces- conviction, leaving the verse the murder sary to constitute crime prosecutor information if so to file a new bombing incident included If of this advised. such be outcome charged crime of murder as . . . case, I would the conviction for affirm and the state not obtain a conviction stealing, disposition the matter as this only “not of the crime of murder bomb- prob- jeopardy double would eliminate the ing but also conviction for the incident lems discussed herein and would leave later bombing.” Id. at As stated which, conviction, stealing as to Nielsen, re U.S. S.Ct. alone, I when considered see no error. 676, 33 . where L.Ed. “. . a. has been tried con- hand, if this is not to On the other view victed a crime has various inci- degree murder prevail and if the second it, dents included in he cannot be a second stand, then I must is allowed conviction time tried for one of those incidents with- princi- portion of the also dissent from the being put jeopardy out twice for the stealing pal opinion affirming the convic- same offense.” is not holding tion and that the put jeopardy for the same being bombing may twice as a prosecuted not be Just opinion principal con- offense. While a crime in itself if it is the same bomb- felony is not an homicide, cludes that the incident to a neither can degree of second separated “element” of the crime pros- this case be req- murder, merely goes prove but ecuted as another offense it is the crime, mental state same stealing degree uisite incident to the second Regardless of conclusion immaterial. conviction. The lesser crime up” rationale behind the greater ought “used in the not to doctrine, in order to remains that separate charge the fact be “thrown in” as a now guilty for second easily possi- reach a verdict that rule 24.04 makes it more only the fact prove prosecutors the state need ble for more try than perpe- in the and a homicide offense in single proceeding.

Case Details

Case Name: State v. Chambers

Court Name: Supreme Court of Missouri

Date Published: Jul 14, 1975

Citation: 524 S.W.2d 826

Docket Number: 58407

Court Abbreviation: Mo.