State v. Gassert

Henry, J.

i. murder in the presumption of.

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 *355 extremely difficult to reconcile the doctrine with those cases, in which it has been held by this court, that premeditation means thought of beforehand for any length of time however short; that malice is the intentional doing of a wrongful act without just cause or excuse, and that willful means intentional; but it must now be taken as settled notwithstanding this seeming conflict between the cases. The case of the State v. Joeckel, 44 Mo. 234 , in which a different doctrine was. announced, was substantially, though not expressly, overruled in the State v. Holme, 54 Mo. 153 ; State v. Hudson, 59 Mo. 137 , and the State v. Foster, 61 Mo. 552 ; in which the opinions of the court were delivered by the same judge, Wagner, who delivered that in the State v. Joeckel. These eases were followed in the State v. Lane, and the State v. Kring, and this court is not inclined to re-open the question.

2. manslagbtek ghee.

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 *356 to kill is of the essence of murder in the second degree; it is not for this court, or the Court óf Appeals, to make laws for the punishment of an act for which the legislature has not seen proper to provide a punishment. But we think there is no ground for the apprehension expressed by the Court of Appeals.

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.

All concur.

Reversed.