68 Mo. 552 | Mo. | 1878
Lead Opinion
— At the May term, 1878, of the circuit court of Callaway county, the defendant was indicted for murder in the first degree for the killing of one Robt. Scott. At the November term following, he was tried and found guilty and sentenced to be hanged. Stay of execution was awarded, and the case has been heard here on
In support of the motion for a new trial an affidavit of one of the jurors was filed, which stated in substance, that while the jury were considering their ,. , . „ ,. . . ,, , ,, verdict, he was of the opinion tnat the case was not one in which capital punishment should be inflicted, but he was induced to believe that the court had the power to inflict a less degree of punishment; that he and others of said jury were opposed to rendering a verdict in said case that would result in the death of the defendant. It will be sufficient to say on this point that a juror will not be allowed to impeach his verdict on the ground that he would not have found the defendant guilty if he had known that the punishment fixed by law for the crime
The only question of importance presented for our determination, arises upon the action of the court in giving, at the instance of the prosecuting attorney, the following instructions:
4. “ To constitute murder in the first degree, it is not necessary that the fatal beating, wounding or striking be given with the specific intent to kill; it is sufficient if it be given willfully and maliciously, and with the intent to inflict great bodily harm, and death ensue.”
13. “ If the jury believes, from the evidence, that it was not the intention of the defendant to kill the child Scott, by whipping him, but that he did intend to do him great bodily harm, and in so whipping him, death ensued, he is guilty of murder in the first degree.” .
It is contended on behalf of the State that the foregoing instructions were fully warranted by .the decision of this court in the case of the State v. Jennings (18 Mo. 435), and in the State v. Green (66 Mo. 631). In the ease first named, which was a most atrocious case of lynching, the infliction of which was continued for several hours, under circumstances of the greatest cruelty and brutality, there was no occasion for any effort on the part of the State to make a case of constructive murder in the first degree, as the facts of the case justified the jury in finding the defendant guilty of a willful, deliberate and premeditated killing. The following instruction, however, was given in that case: 6. “If the jury believe from the evidence that it was not the intention of those concerned in lynching Willard, to kill him, but that they did intend to do him great bodily harm, and that in so doing death ensued, such killing is murder in the first degree by the statutes of this State.” Judge Ryland, who delivered the opinion of this court, approved this instruction in the following language : “ The sixth instruction is correct under the statutes of this
There are tivo errors in the foregoing extract, which . will be made patent by reciting the two sections of the statute referred to. Section 1 is as follows: “ Every murl der which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree.” Section 38, now section 33, is as follows : “ If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter, if death had ensued, the person by-whose act, procurement or negligence such injury or danger of life shall be occasioned, shall in cases not otherwise provided for, be punished by imprisonment in the penitentiary,” &c.
It will be observed that the statute does not say that every homicide committed in the maimer therein pointed out, shall -be murder in the first degree, but that every murder so committed, shall be murder in the first degree. The object of the first and second sections of the statute, is to divide the crime of murder into two degrees, and they deal with that crime as it existed at common law. This is made manifest by the language of the second section, which is as follows : “All other kinds of murder at common law, not herein declared to he manslaughter, or
This error, which is the most important one, so far as the present case is concerned, consists in the declaration that the thirty-eighth (33) section makes the person by whose act or procurement great bodily harm has been received by another, guilty of felony. This is a very grave error. As before stated, the bare infliction of great bodily harm was not a felony at common law, and it is not made so by statute. The statute says if any person shall receive
We are of the opinion that the words “ other felony” used in the first section refer to some collateral felony, and not to those acts of personal violence to the deceased which are necessary and constituent elements of the homicide itself, and are, therefore, merged in it, and which do not,
Again, the first section declares that all murders committed in the perpetration, or attempt to perpetrate, any' arson, rape, robbery, burglary or other felony, shall be murder in the first degree. As this section, as before shown, includes only such murders as were murders at common law, it may well be doubted whether the words “other felony” can be held to include offenses which were not felonies at common law. This point, however, we do not now decide, it being unnecessary in the present case. But the statute evidently contemplates such “other felony” as could be consummated,.,although the murder should also be committed. It says murders “ committed in the perpetration, or attempt to perpetrate,” any felony. It were absurd to say that there could be an attempt to perpetrate a felony which could not be perpetrated. The statute, therefore, must refer to such felony as may be perpetrated, although the murder is committed. The arson, rape, robbery, burglary may each be perpetrated and the murder also be committed. But when great bodily harm has been inflicted, and death immediately or speedily ensues therefrom, what felony has been committed, either at common law or under our statutes, in addition to the murder? The infliction of great bodily harm is, by the statute, only made a felony when death does not ensue, and when, if it had ensued, the whole offense, including the infliction of the bodily harm, would constitute either murder or manslaughter; but whether murder or manslaughter, would have to be determined by the. circumstances of the case, as in other cases of personal violence terminating in death, when the same was not inflicted in the perpetration or attempt to perpetrate some collateral or independent, substantive crime. (Kelly v. Commonwealth; 1 Grant’s cases, 487.) If the instruction given in this case can be úpheld, it will convert many cases of unintentional killing, which are manslaugh
These views are in accordance with the construction placed by this court upon an analogous provision of the statute, relating to inferior grades of homicide. The statute defining manslaughter in the first degree is as follows: “ Section 7. The killing of a human being without a design to effect death by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or the attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in eases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree.” It was held by this court in the case of the State v. Sloan, 47 Mo. 604, that the foregoing section contemplates some other misdemeanor than that which is an ingredient in the imputed offense, otherwise that part of it relating to an attempt to perpetrate a misdemeanor would be wholly nugatory; that where an act becomes criminal from the perpetration or the attempt to perpetrate some other crime, it would seem that the lesser could not be a part of the greater offense. (Vide, The People v. Butler, 3 Parker’s Crim. Rep. 377; People v. Skeehan, 49 Barb. 217; People v. Rector, 19 Wend. 605.)
On the facts of this case, we think the jury might properly have been instructed as to the law of murder in the first degree, on the theory of a willful, deliberate and premeditated killing, and also as to the law of manslaughter in the fourth degree. It was to be expected, of course, that the circuit court would, in passing upon the instructions presented at the trial of this case, be governed by the decision of this court in the case of the State v. Jennings, but the doctrine of that ease and of the case of the State v. Nueslein, 25 Mo. 111, in so far as it conflicts with our opinion in this ease, is overruled. There is no conflict between this case and the case of the State v. Green (66 Mo. 631). In the latter case the defendant, at
Reversed.
Concurrence Opinion
Concurring. — The obvious meaning of section 1, art. 2, of the act in relation to crimes and punishments, is that every homicide committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, which was murder at common law, should be deemed murder under that section, and classed with those murders committed by means of poison, lying in wait, etc. It was not intended to enlarge the class of constructive murders, but only to recognize those designated, and assign them their places in the classification made by that section. If the construction contended for by the State prevail, it will nullify many
If one assault another with intent to kill, he is guilty of a felony under Wag. Stat., sec. 32 p. 449. If the assault be premeditated, but not deliberate, and death ensue, the offense would be murder of the second degree. If made in a heat of passion, it would be manslaughter, unless the doctrine of the Jennings case be correct, under which it would, in either case, be murder in the first degree,, because the commission of the homicide was in the perpetration of a felony, thus making what was manslaughter at common law, and murder in the second degree under our statute, murder of the first degree, a result not to be thought of but with abhorrence.
If when great bodily harm is inflicted, under circumstances which, if death ensue, would constitute the offense manslaughter, the offense is to be transformed into murder by construction, how is the 32d section to be distinguished from the 33rd in the application of the construction placed
It is clear from the whole scope and spirit of the act that it was intended to mitigate the severity of the common law in regard to murder, but this construction of the first section would make our code more severe. The substitution of the words “ neither excusable nor justifiable,” for the words “ which would constitute murder or manslaughter ” in section 33, perverts the meaning of the section
The Jennings ease has been acquiesced in for a number of years, and was expressly approved and followed in the Nueslein case, 25 Mo. 111, and this fact, if the doctrine were not clearly wrong, should make this coui’t hesitate to overrule it; but the principle of stare decisis does not obtain in criminal to the same extent as in civil cases. A number of adjudications one way, indicates that the law is as they
Dissenting Opinion
Dissenting. — As I do not concur either in the conclusion announced by the court, or in. the reasoning on which it is based, and as the question involved is one of great importance, it is but proper that my reasdus for dissent should be given. The main point of controversy grows out of the action of the trial court in giving the following instruction, viz.: “ If the jury believe from the evidence that it was not' the intention of the defendant to kill the child, Scott, by whipping him, but that he did intend to do him great bodily harm, and in so whipping him death ensued, he is guilty of murder in the first degree.”
It may be announced as a principle well established that when a statute of another State having received judicial construction, is adopted in this State, it is usual and ■ proper to give it the same construction there placed upon it. So, when a statute has been construed by this court, and it is subsequently re-enacted by the General Assembly without alteration or change in any respect, it is to be understood as having been enacted in the sense in which it has been judicially interpreted. The precise question
The same question of construction again arose in 1857, in the case of State v. Nueslein, 25 Mo. 111, and the construction given to the sections in the case of State v. Jennings, was fully approved by an undivided court. The question again árose in the case of State v. Green, in 1877, and the above cases were fully sanctioned. The principle was again sanctioned in the case of State v. Swain, decided at the present term. I can not, therefore, consent to overthrow both such judicial and legislative construction of the statute relating to what is murder in the first degree, unless it be made clearly to appear, by adjudicated cases based upon the construction of a statute similar to our own, or by incontrovertible reasoning that such construction can neither be maintained on principle nor authority.
The authorities referred to for the purpose of demonstrating. that such construction is erroneous fall short of
Having shown that only one of the three judges in the case of the People v. Rector, assented to the principle announced in the case of the People v. Butler, and the State v. Sloan, it follows that the two latter cases are without
It may be conceded that no homicide committed in this State can under Wag. Stat., sections 1, 2, p. 445, be' murder in either the first or second degree unless such homicide was murder at common law. That the defendant in killing the child under the circumstances disclosed in the evidence would at the common law have been guilty of murder cannot be questioned. At common law, the intent to do “enormous” or severe bodily harm followed by homicide constitutes murder * * So “ if A only intend to severely beat B in anger from preconceived malice and happen to kill him, it will be no excuse that he did not intend all the mischief that followed, for what he did was malum in se and he must be amenable for its consequences. He beat B with the intention of doing him great bodily harm and is therefore amenable for all the harm he did.” Whart. on Homicide, sec. 40, p. 40.
So the defendant in this case in the light of the facts developed by the evidence would, at common law, have been guilty of murder. Is this common law murder under our statute murder in the first or second degree or manslaughter in the first degree? Wag. Stat., sec. 1, p. 445, declares that “ every murder * * committed in the perpetration or attempt to perpetrate auy arson, rape, robbery, or burglary or other felony, shall be deemed murder in the first degree.” If, therefore, the defendant was engaged in the perpetration of a felony in beating the deceased, a child five years old, with a fishing-pole, one and a half inches in diameter, and a grapevine one and one-fourth inches in diameter, in a most cruel manner, and the death of the child was' the result, it necessarily follows that the homicide thus committed falls within the statutory definition of murder in the first degree and can be nothing less. That defendant in thus beating the child w,$,s engaged in the perpetration of a felony is manifest
In speaking of this subject, Wharton (Whart. on Horn., sec. 58, p. 58.) lays down the rule to be that “ where a Legislature thus creates a statutory offense, the statutory definition is absolute.” Again.in sec. 40, p. 40, “where a statutory line is to be followed it has been held that when the damage intended was such as would probably result in death, it is murder in the first degree, even though the death may have been but incidental to the offender’s purpose.” Had death not resulted from the severe injuries and great bodily harm inflicted upon deceased, it cannot be denied that for the infliction of the injuries as stated in the opinion of the court and as shown by the evidence, without- justification or excuse, the defendant would have been amenable to a prosecution for a felony under section 33. In committing this felony the death of deceased was occasioned, and the statute interposes with its “absolute rule” and declares that a murder committed under such circumstances shall be deemed murder in the first degree. There is no ambiguity in the language of the act; it is plain and
The felony committed by B in inflicting great bodily harm on A, under unjustifiable or inexcusable circumstances, is no more merged in the killing of A if death is occasioned thereby, than would the felony of B in committing a rape on A, resulting in A’s death. If B starts, out with a fixed felonious purpose to “ inflict great bodily harm” on A, under circumstances neither excusable nor justifiable, without intending to kill but to stop with the infliction of great bodily harm and death ensues, the felony committed in inflicting the great bodily harm is no more merged in the killing than would a rape perpetrated by B upon A, which resulted in the death of A, be merged or lost sight of in the death of A. The crime in either case would be murder in the first degree, notwithstanding the violence used in committing the rape and in inflicting the injuries occasioning the death would necessarily be directed against the person killed and would be the sole cause of the death, though not inflicted with a murderous intent and purpose. It is said in the statute that murder “ committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be murder in the first degree.” In all these enumerated cases the General Assembly has declared the law that the perpetrator shall be held guilty of murder in the first degree, without fur
A further illustration may be drawn from section 33, supra, which makes it a felony where any person shall be maimed, wounded or disfigured, or receive great bodily harm, in cases and under circumstances which would constitute murder or manslaughter, if death ensued. Now, if A, with no intent to kill B, but with a purpose to maim him and send him through life a limbless man, should, on purpose, without cause or excuse, cut off the hand of B, the felony would be consummate and complete as soon as the act of maiming was done, and A would be liable to immediate arrest, trial, conviction and punishment for the felony. If B should, thereafter, die within a year, his death being occasioned by the maiming, A would be answerable for the murder, although the act of maiming
In my opinion, the construction placed upon section thirty-three, that it makes the infliction of great bodily harm only a felony when-death does not ensue, and that if death does ensue it is made murder or manslaughter, according to circumstances, is not warranted by the language of the act. Whether the infliction of great bodily harm, in cases and under circumstances which, if death ensued, would be murder or manslaughter, is a felony or not, does not depend upon the question whether the party injured
I cannot subscribe to the doctrine announced, that the words “other felony,” used in the first section, defining murder in the first degree, refer to some collateral felony, and not to those acts of personal violence to the deceased which are necessary and constituent elements of the homicide itself, and are, therefore, merged in it. This construction abrogates the section, and under it A, who shoots at B with intent to maim him only, (which is a statutory felony,) and kills C, would be guilty of murder in the first degree; while if the shot intended only to maim had killed B, he would only be guilty of some lower grade of homicide. It is conceded that if the death ensues from the perpetration, or attempt to perpetrate, any of the specified felonies, viz.: arson, rape, robbery or burglary, the offense would be murder in the first degree. Why should it not be so in regard to any other felony? The language of the law is, if the murder is committed in the prepetration of the enumerated felonies, or “ other felony,” it shall be murder in the first degree. The words “ other felony ” are comprehensive enough to embrace every felony defined by the statute, and it is for the Legislature, and not for the courts, to restrain their operation. The oxime of inflicting great bodily haxun, as defined by section thirty-three, is just as susceptible of perpetration, although the murder is also committed as is rape or robbery. The rape is consummate when penetration is made by force, and against the will and consent of the person; and if death ensues from the vio
In the case of State v. Green, 66 Mo. 631, the court instructed the jury to the effect that if the deceased was a deputy marshal of Jackson county, and had in his possession a warrant for the arrest of defendant, and exhibited the same to defendant, and informed him of its contents, and was proceeding in a quiet manner to arrest defendant, and defendant resisted such arrest, and shot and killed deceased to avoid arrest, such killing was murder in
Nor can I assent to the conclusion announced that the facts of this case, disclosing, as they do, a case of murder at common law occasioned by the infliction of great bodily harm, would justify an instruction for manslaughter in the fourth degree. Wag. Stat., sec. 17 p. 447, defining that grade of manslaughter, could not apply, because the killing must be done under it “by means neither cruel nor unusual, in the heat of passion.” The killing in this case was done by the most cruel means, and without heat of passion. Wag. Stat., sec. 18 pp. 447, 448, defines manslaughter in the fourth degree as “every other killing of a human being by the act, procurement or culpable negligence of another, which would be manslaughter at common law, and which is not excusable or justifiable, or is not declared in this chapter to be manslaughter in some other degree.” This section cannot be held to apply here, because it is conceded, and the facts unquestionably show, that the killing of the deceased by the accused was murder
Judge Ryland, who wrote the opinion iu the case of the State v. Jennings, supra, in the use of the words “ homicide committed in inflicting great bodily harm,” used them with reference to the facts involved in the case he was considering. The facts established that the homicide was unquestionably murder at common law, and that the bodily harm inflicted on Willard, whose death resulted, was without any justification or excuse. The language employed by him is, therefore, only open to verbal criticism, which in no manner affects the correctness of the conclusion reached, which was, that “ although it was not the intention of those concerned in lynching Willard to kill him, but they did intend to do him great bodily harm, and in so doing death ensued, such killing is murder in the first degree by the statute of the State.” It would have been a work of supererogation for the court in that ease to have added, after the words “ great bodily harm,” in the instruction, the words “ without just cause or excuse,” as there was not a particle of evidence even tending to show such cause or excuse. Had such words been added, it would have been the duty of the court to have further instructed that, under the evidence, there was no just cause or excuse for inflicting the great bodily harm. So in the case at bar; all the evidence showing that the defendant inflicted the beating on the deceased child without the slightest excuse, iu a most barbarous manner, as detailed in the opinion of the court, it would have been a useless act for the trial court to have added the words “ without justification or excuse,” to the words “great bodily harm,” where they occur in the instruction, and thus have required the jury to have found a fact which, under the evidence, it would have been the duty of the court to have told them,' in another instruction, they could not find.