State v. Robinson
| Citation | 73 Mo. 306 |
| Parties | THE STATE v. ROBINSON, Appellant. |
| Decision Date | 31 October 1880 |
| Court | United States State Supreme Court of Missouri |
Error to Clinton Circuit Court.--HON. GEORGE W. DUNN, Judge.
REVERSED.
Hamilton & Fisher for plaintiff in error.
D. H. McIntyre, Attorney General, for the State.
The defendant was indicted for murder in the first degree and was convicted of murder in the second degree. It is unnecessary to state the facts. The court gave, among others, the following instruction:
3. “If the jury find from the evidence that the defendant feloniously, willfully and maliciously, and not deliberately and premeditatedly, shot and killed Thomas J. Robinson, they will find him guilty of murder in the second degree, and not guilty of murder in the first degree.” Instruction numbered eight, given for the State, is to the same effect.
These instructions do not conform to the definition of murder in the second degree, laid down in the State v. Curtis, 70 Mo. 594. It was distinctly stated in the opinion in that case, that there can be no murder in the second degree without premeditation, a word which has uniformly been defined by this court, since the statute classifying murders has been in force in this State, to mean “thought of beforehand for any period of time however short.” Premeditation is a necessary constituent of murder in the second degree, as there can be no murder in the second degree which was not murder at common law, and there could be no murder at common law unless the act causing death was committed with malice aforethought, that is, with malice and premeditation. This statement, which is substantially the same as that embodied in the opinion in the State v. Curtis, supra, does not mean that the death itself must have been premeditated in order to constitute murder in the second degree. Both the act causing death and its natural consequence, the death, may in some cases be premeditated, but in all cases it is essential that the act causing death should be premeditated, in order to constitute murder in the second degree. The legislature certainly did not intend the words “premeditated” and ““deliberate” to be construed as meaning precisely the same thing. The simple fact of the employment of both words, apart from other considerations, shows that one of them was intended to have a larger signification than the other, and this larger signification has, in recent cases by this court, been assigned to the word “deliberate.” State v. Wieners, 66 Mo. 13; State v. Curtis, 70 Mo. 594.
The distinction thus drawn between murder in the first and murder in the second degree, is a rational and just one; one which can be observed in practice, because in harmony with that discriminating sense of right, which in calm times will always control the...
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