65 Mo. 352 | Mo. | 1877
It has so often been decided by this court that, from the simple act of killing; the law presumes murder in the second degree, that it is no longer an open question, m this state, whatever doubts may have been formerly expressed on the subject. State v. Holme, 54 Mo. 153; State v. Hudson, 59 Mo. 137; State v. Foster, 61 Mo. 552; State v. Kring, 64 Mo. 594; State v. Lane, 64 Mo. 319. Speaking for myself only, I think it
We think it equally well settled by the adjudged cases in this State, that an intention to kill is one of the elements of murder in the second degree, and that one cannot be convicted of that offense unless he intentionally committed the homicide. See cases above cited. In this case the jury were instructed that “ if the party killing did not intend to kill, but assaulted and killed with malice, as that term is known to the law, then the offense is murder in the second degree.” The defendant was convicted of murder in the second degree. The Court of Appeals, by Bakewell, J.', in his able opinion says: “ If it is said that the intention to kill is of the essence of murder in the second degree, it might become practically impossible to convict of any grade of crime one who committed homicide under the circumstances of the case at bar.” If the question were an open one, that consideration would be of great weight in determining the proper construction of that section of our statute, which makes the distinction betwixt murder in the first and murder in the second degree; but taking it as settled by repeated decisions of this court, and correctly, that an intention
Section 11 of Art. 2 of the act in relation to crimes and punishment, defines manslaughter in the second degree to be the “killing of a human being without a design to effect death, in a heat of passion, but in a cruel or unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide.” Sec. 13 defines manslaughter in the third degree to be “the killing of another in a heat of passion without a design to effect death by a dangerous weapon, in any case except such wherein the killing of another is justifiable or excusable.” In this case there was altercation between defendant and deceased, and in a heat of passion defendant struck deceased a blow on the head with a stick, which resulted in the death of the deceased. The court was asked to instruct the jury in regard to manslaughter in the second and third degrees, which the court refused. Ve are of opinion that the jury should have been instructed as to manslaughter in the second degree, and because the court refused so to instruct, and told the jury that whether defendant intended to kill deceased or not, they might find him guilty of murder in the second degree, the judgment of the Court of Appeals is reversed, and the cause remanded to the Saint Louis criminal court.
Reversed.