State v. Moore.State v. Moore.
The facts adduced advise that Chris Heller, Sr., conducted a retail butcher shop in the city of St. Joseph at 2144 South Sixth Street. On February 22, 1922, he was sixty-five years of age. On said morning between the hours of six and six-thirty a. m., defendant entered the shop of said Heller, from whom he had previously borrowed money. It appears that Heller held a check of defendant for $50, which Heller had not deposited at the suggestion of defendant. On said morning he requested of Heller a further loan of $40, advising that, in lieu of the $50 check and the $40 loan, he would give him his check for $90. Some words occurred between them with respect to a refusal by Heller to loan defendant more money. Heller
The record shows that on April 28, 1922, the then Prosecuting Attorney of Buchanan County filed an information in the circuit court charging defendant with the crime of murder committed in the perpetration of the robbery of said Heller, on which charge defendant was arraigned and pleaded not guilty. On January 25, 1923, the successor prosecuting attorney filed an amended information, which was an ordinary pleading charging defendant with murder in the first degree. On January 29, 1923, defendant, after first pleading not guilty to the amended information, withdrew his plea of not guilty and entered a plea of guilty to the charge of the amended information. Thereupon the trial court pronounced judgment, and sentenced defendant to imprisonment in the State penitentiary for and during his natural life. In compliance with the judgment, defendant was delivered to the Warden of the state penitentiary, where he remained until he was released under an order of parole by the Governor of Missouri on February 29, 1928. Thereafter, on May 2, 1929, an information was filed, charging defendant with the robbery of Chris Heller, Sr., on February 22, 1922, with the result as heretofore related.
To defendant’s plea in bar, setting forth the preceding facts, the trial court sustained a demurrer. Defendant’s only contention is that the offense of robbery merged into the offense of murder, and that, having been sentenced for the murder of the said Heller, he has been put twice in jeopardy for the same offense by his prosecution for the robbery of Heller, which grew out of the same occurrence.
I. The sole ground urged by defendant for a reversal of the judgment rests on the postulate that the murder and the robbery of Heller constituted one transaction. He argues that it follows that the offenses were merged, resulting that the prosecution and conviction of defendant for the robbery of Heller, subsequent to the prosecution, plea of guilty and sentence of defendant for the murder of Heller, placed defendant twice in jeopardy for the same offense.
Anciently, at common law, no degrees of murder obtained, and all murders were punishable by death. [13 R. C. L. 755.] Our statutes, however, have classified murders into first and second degree, respectively, and the distinction that obtains generally between the degrees is the element of deliberation. The necessary elements in second degree murder are premeditation, willfulness, intent and malice aforethought. To these, in first degree murder, the element of deliberation must be added. But, if the murder is committed while committing or attempting to commit one of the crimes named, the proof of that fact deletes the necessity of proof tending to show deliberation, for the statute renders such a state of facts the equivalent of deliberation. Even though a murder is committed during the perpetration of a robbery, it is not necessary for the State to plead and prove that it was so committed, provided the indictment or information avers and the proof tends to show deliberation. [State v. Nasello, 325 Mo. 442, 30 S. W. (2d) 132.]
Our Constitution (
We reiterate that our Constitution and the common law proscribe a second jeopardy for the same offense. Murder and robbery are not and cannot be the same offense. It may be that during the same
Defendant cites State v. Mowser, 92 N. J. L. 474, 106 Atl. 416, 4 A. L. R. 695, to sustain his position. That case is seemingly predicated on the postulate that the occurrence out of which the offenses issued was one inseparable transaction. This may be called the “same transaction rule.” Missouri, according to our decisions, prefers to follow the separate or several-offense rule, and we have held that an offender is not to be exonerated from responsibility for his acts because his desires or passions persuade or impel him to commit two or more offenses during a transaction or occasion. [State v. Martin, 76 Mo. 337; State v. Bobbitt, 228 Mo. 252, 128 S. W. 953; State v. Temple, 194 Mo. 228, 92 S. W. 494.] The general rule on the subject is stated in 8 Ruling Case Law, page 148, section 133, reading: “When a single transaction constitutes two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.” On the facts stated, the case of Warren v. State, 79 Neb. 526, 113 N. W. 143, is in point, and we think the conclusions therein are sound and in accordance with the general rule. [16 C. J. 272-3, sec. 453.]
It follows that defendant by his acts committed several and distinct offenses and that his prosecution and trial on the charge of robbing Heller, following his plea of guilty on the charge of murdering Heller, did not put him again or twice in jeopardy for the same offense. The judgment is affirmed. Cooley, C., concurs.
PER CURIAM:—The foregoing opinion by Davis, C., is adopted as the opinion of the court. All of the judges concur.