State v. Gassert

• Decision Date: 31 October 1877
• Citation: 65 Mo. 352
• Parties: THE STATE v. GASSERT, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 352

THE STATE

v.GASSERT, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

F. D. Turner, for appellant.

In order to constitute murder in the second degree, under our statutes, there must at least be an intent to kill, inferable from all the facts and circumstances in the case. State v. Foster, 61 Mo. 549; State v. Hudson, 59 Mo. 135; State v. Underwood, 57 Mo. 40. Whenever there is any doubt as to the grade of the offense, it is the duty of the court clearly and distinctly to instruct the jury as to the law, defining the several grades of homicide, and then to leave the jury to find from the evidence of which particular grade the defendant is guilty. Archbold's C. L. P. & P., p. 918; Crawford v. State, 12 Geo. 142; State v. Kirkwood, S. C. (Rec.) 14, p. 230. The court erred in refusing to instruct as to manslaughter.

Jackson L. Smith, Attorney General, for respondent

From the simple act of killing, the law presumes it to be murder in the second degree. State v. Foster, 61 Mo. 549. The evidence does not show the defendant guilty of any of the four several grades of manslaughter defined by our statute, and unless the defendant is guilty of murder, he is guilty of no crime known to our laws. The instructions relating to murder in the second degree are copied, word for word, from the instruction given in the case of State v. Joeckel, in which the court said that it was a clear, accurate and precise definition of murder in the second degree, and correctly pointed out the distinguishing feature between the two grades of murder. 44 Mo. 234.

Counsel for appellant now contends that there can be no murder in either degree, unless a specific intention to kill existed at the time the fatal blow was given. If this is so, it is manifest that murder in the second degree is an offense entirely different from murder as the word is used by the common law writers, and what is murder at common law is a crime in this state for which no punishment is provided, or at best, is but a misdemeanor. It may be that among the many murder cases in the Missouri Reports, the appellant's counsel may find some dicta here and there holding that only the intentional killing of a human being is murder. But, since the case of State v. Joeckel, supra, has been decided, it has never been criticised nor mentioned with disapprobation. On the contrary, it was expressly sanctioned in cases of State v. Saunders, 53 Mo. 234, and State v. Hudson, 59 Mo. 135. The theory of the case of State v. Joeckel, is in full harmony with the late cases of State v. Lane, 64 Mo. 319, and State v. Evans, 5 Cent. L. J. 12. When A kills B, the law presumes that the crime is murder in the second degree, from the simple act of killing. State v. Evans, supra, and cases cited.

In order to make the crime murder in the first degree, circumstances must be proved from which the intent to kill, deliberation and premeditation may be inferred. State v. Foster, supra. If it it said that the intention to kill is of the essence of murder in the second degree, it would be practically impossible to convict of any grade of crime one who committed homicide under the circumstances of the case at bar. It does not come within any of the degrees of manslaughter, and therefore, if the case of State v. Joeckel, and all the subsequent cases are erroneous, then in case of a murderous blow with a stick, given without any provocation, and resulting in death, the homicide would go scot free. To say that this is the law of Missouri, is absurd! The deduction from all these cases is, that to convict of murder in the first degree in Missouri, there must be an intention to kill, to be inferred at least from the circumstances of the case; to convict of murder in the second degree, that degree of malice must appear, or be inferable from the circumstances, which the common law requires in cases of murder, but the intent actually to kill may or may not exist. It is not of the essence of the crime of murder in the second degree under our statute. It must exist in murder in the first degree, and is not inconsistent with murder in the second degree.

1. MURDER IN THE SECOND DEGREE: presumption of.

HENRY, J.

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, in 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 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...