68 Mo. 552 (1878)
— 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 appeal. The evidence on the part of the State tended to show that on the 6th day of March, 1878, the defendant beat the deceased, who was a boy between five and six years of age, with a piece of sycamore fishing-pole, about three feet long and one and a half inches in diameter, for some minutes, accompanying his beating with oaths; that he left the room in which he was beating the boy, went into the yard, procured a piece of grapevine about one and one-fourth inches in diameter, returned to the house and resumed the beating, which lasted in all about fifteen minutes. During the beating the child did not scream or cry, but groaned and moaned, and after several days, died of the injuries so received at the hands of the defendant. An inquest was held, at which the body was examined. The child’s head was found to be covered with bruises, its back beaten to a jelly and its skull fractured. On the part of the defendant evidence was introduced tending to show that the deceased was very weakly and sickly; that the defendant did not beat it on the day named, and that the wounds on its head were caused by its falling down stairs. The deceased was a son of a cousin of the wife of the defendant, and it appears that it had been at the house of the defendant for about two months, but whether as a visitor or otherwise, the record does not show.
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 that 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 charged was death. The nature of the punishment had nothing to do with the guilt or innocence of the defendant.
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:
- “ 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.”
- “ 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 case 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 State (see Crimes and Punishments, R. C., 1845, § 1, 38). Homicide, committed in the attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree. The 38th section makes the person by whose act or procurement, great bodily harm has been received by another, guilty of what is by our law called a felony; that is, guilty of such an offense as may be punished by imprisonment in the penitentiary.”
There are two 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 murder 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 manner 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 be manslaughter, or justifiable or excusable homicide, shall be deemed murder in the second degree.” So that in every case under the first section, the first, though not the sole, inquiry to be made is, whether the homicide was murder at common law; if not, it cannot be murder in the first degree under the statute. Wharton on Homicide, § 184. At common law a homicide committed in the willful and malicious infliction of great bodily harm was murder, though death was not intended; but this was not so because such infliction of great bodily harm was in itself a felony, in the perpetration of which the homicide was committed, but because such infliction of great bodily harm was an act malum in se, and the party was, therefore, held answerable for all the harm that ensued. Foster, 259. But as such a homicide, death not being intended, is not a willful, deliberate and premeditated killing, and is not a murder committed in the perpetration or attempt to perpetrate any of the felonies specially designated in the first section, but a simple unintentional killing only, it has been universally classed as murder in the second degree, in those States having statutes identical with our own, with the exception of the words, “ other felony.” Wharton on Homicide, §§ 40, 190. But as murder in the second degree with us comprehends only such homicides as are intentional but without deliberation, it cannot be so classed in this State. State v. Wieners, 66 Mo. 11. How it shall be classed under our statute must depend upon the construction to be given to the words “ other felony,” in the first section. This brings us to the second error in the statement of Judge Ryland.
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 great bodily harm 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 * * shall be occasioned, shall * * be punished by imprisonment in the penitentiary,” &c., that is, shall be guilty of a felony, and punished as therein prescribed, if death does not ensue. Now, upon the supposition that this felony is one contemplated by the words “other felony” in the first section, let us add this qualification to the thirteenth instruction given in this case, and see what its legal effect will be. The instruction will then read as follows: “If the jury believe from the evidence that it was not the intention of the defendant to kill the child, Robert Scott, by whipping, but that he did intend to do him great bodily harm, under circumstances which would constitute murder or manslaughter, if death ensued, and, in so whipping him, death did ensue, then he is guilty of murder in the first degree.” Would not such an instruction as this present a palpable contradiction on its face ? If the circumstances under which the bodily harm was inflicted were such as to constitute the offense of manslaughter, if death ensued, by this instruction it is, nevertheless, declared to be murder in the first degree. The language adopted in the supposed instruction is, of course, not such as would be used to a jury, as it presents a question of law, but it is pertinent and proper thus to bring together the two provisions for the purpose of determining the construction of the statute. It would seem, therefore, that the offenses mentioned in the thirty-third section are not such as are meant by the words “ other felony ” in the first section.
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, when consummated, constitute an offense distinct from the homicide. (Wharton on Homicide, §§ 55, 56, 57, 58, 62.)
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 upheld, it will convert many cases of unintentional killing, which are manslaughter only under other provisions of the statute, into murder in the first degree.
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 cases 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 case and of the case of the State v. Nueslein, 25 Mo. 111, in so far as it conflicts with our opinion in this case, 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 the time of the homicide was resisting an officer under circumstances which made such resistance a collateral felony, both at common law and under the statute. True, the Jennings case was cited in support of instructions numbered 3 and 4, given for the State in that case, which omitted the elements of deliberation and premeditation; but those instructions were unlike the sixth instruction in the Jennings case and the thirteenth instruction in the case at bar, and are in conformity with this opinion. Neither of them declared that if the defendant did not intend to kill the deceased, but did intend to inflict upon him some great bodily harm, he was guilty of murder in the first degree. The person killed by Green was an officer who had a warrant for his arrest on a charge of felony, and instructions 3 and 4, above referred to, were to the effect that if the deceased read such warrant to the defendant or notified him of his authority to arrest him, and the defendant killed the deceased in resisting such arrest, he was guilty of murder in the first degree. Those instructions were undoubtedly correct, for the reasons heretofore given. The difference between that case and the present one is apparent. The judgment will be reversed and the cause remanded.
Napton and Henry, JJ., concur; Sherwood, C. J., and Norton, J., dissent.
Reversed.