¶1-In this case I concur in the result. In the perpetration or attempt to perpetrate a robbery, wilfulness, deliberation, and premeditation are necessarily implied, both at common law and under the statute; and where, as in this case, the killing is that of the person robbed, or attempted to be robbed, the offence is necessarily murder in the first degree; but whether there may or may not be a killing, collateral to the robbery, that is, of some person, other than the party robbed, or attempted to be robbed, is not now before us, and I see no necessity in this case, to pass upon that question or the effect thereof, and, therefore, express no opinion upon it.
¶2Concurring in the affirmance of the judgment, I dissent from that portion of the opinion of the court expressly overruling the cases of the State v. Hopper, 71 Mo. 425, and State v. Earnest, 70 Mo. 520, and in effect overruling State v. Wagner, 78 Mo. 644. Every member of this court concurred in that opinion delivered in that case by Hough, C. J. Those cases are amply sustained by the weight of authority and I cannot better express my views than by adopting section 184 of Wharton on Homicide. In that section, that ablest of American writers on criminal law, says: “It has sometimes been said that a homicide in the perpetration, or attempt to perpetrate' any arson, rape, robbery, or burglary is, under the Pennsylvania and cognate statutes, murder in the first degree. But it must be remembered that the statutes under criticism do not say that ‘ homicide, ’ when so committed, shall be murder in the first degree. * * * Nothing, there*290fore, that is not murder at common law can be murder either in the first or second degree; and we have first to enquire, therefore, in determining the grade of any particular homicide under the statutes, whether it is murder at common law. We may take, for instance, a homicide committed in the perpetration of arson. Is such a homicide murder at common law ? If it is, it is murder in the first degree, under the statutes before us. If it is only manslaughter at common law, then it is manslaughter under the statutes before us. Now, is such a homicide necessarily murder at common law ? No doubt if a person sets fire to a dwelling house under such circumstances that its inmates, as an ordinary sequence of the fire, are burned and die, then such malice is to be inferred as will make the case murder at common law. The defendant, we may be bound, as a presumption of fact, to infer, knew the house was a dwelling house, and knew, supposing the fire to be communicated to it, that some one of its inmates would, in the ordinary course of events, be injured by the fire. The case would be that of a reckless and malicious firing into a crowd, which is murder at common law, if death ensued. But suppose that when perpetrating the .arson the defendant, in accidentally discharging a gun, killed some one either in the house or in its neighborhood. Now, though we have several high authorities to the effect that this is murder at common law, the sounder view, as we have already seen, is that in such case the defendant should be tried for arson in firing the- building, and for manslaughter in the unlawful killing (without malice aforethought) of the deceased; since the malice aforethought necessary to constitute murder cannot be inferred, in face of the fact that the killing was in no way within the scope of the defendant’s plan, from the mere fact of the arson. If this reasoning be correct the defendant cannot, on the indictment for killing, be convicted of murder in the first degree, but must be convicted of manslaughter ; and Is liable to conviction on a separate indictment for arson. ”
¶3*291Our statutes declare that: “Every murder which ■shall be committed … in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary ■or mayhem, shall be deemed murder in the first degree. ” Sec. 1232. This is just the kind of statutes Mr. Wharton had under consideration in the section above quoted. It is almost identical with that of the states of Pennsylvania and Connecticut. It clearly recognizes the distinction drawn by Mr. Wharton. If the legislature meant that every homicide committed in the perpetration or attempt to commit either of the specified felonies, should be murder in the first degree, was it not as easy to write ■“homicide, ” as “murder?” Is it now, or was it ever the law, that every homicide committed while one was engaged in the perpetration of another crime, and not in furtherance of that other crime, is murder 2 If a burglar, attempting to break into a house, accidentally lets a pistol fall from Ms pocket, which is discharged and kills a man on the opposite side of the street, is it now, or was it murder at common law 2 There is no connection, in such case, between the burglary and the homicide. ' The latter was no more within the scope of the burglar’s plan, than would a similar accidental killing be, in that of a person carrying a concealed pistol in violation of law. If one, in the attempt to commit a burglary, should meet with resistance, be assaulted, •struck, and should instantly kill the assailant, although-there was no deliberation on the part of the burglar, no previous design to kill, no purpose then to kill, yet the homicide would be murder, because committed in the perpetration of burglary, and murder in the first degree, because so classified by the statute. The homicide in such case is murder, without the elements of malice, deliberation, and premeditation.
¶4Mr. Wharton says, in section 56 of Ms work on Homicide, that: “There is reported no modern conviction of common law murder, in a case in which there was no evidence of a malicious intent towards the deceased, and *292in which, the felonious intent proved,' was simply an intent to commit a collateral felony. ” Blackburn, J., in his testimony in 1874 before the Homicidal Amendment Committee, said: ££ Where a man is committing a crime, and, in the course of committing that crime commits violence against anyone, resulting in Ms death, then I apprehend, as the law stands, it is murder, even though the violence should be such that if it had not been inflicted during the commission of a crime, it would have been only manslaughter.” He states an instance to-illustrate his view: ££A poor girl was returning home from church, and had to pass over a stile between twe hedges, and a ruffian, who had lain in wait, threw a shawl over her head and dragged her along some distance, intending to carry her to a wood and ravish her. She died before she got there. ” The man was hanged, for murder. ■ He had intentionally done violence to his victim, in furtherance of his purpose to ravish her. He-did not mean to kill her, yet he was guilty of murder. As in the case supposed of a burglar who at the instant,, without any intent to kill, formed when the burglary was conceived, or attempted, shoots or stabs to death one-who resists him, under circumstances which would constitute the killing manslaughter, but for the attempted burglary, yet it is murder because the violence to the resistant was committed in the perpetration of a burglary. “A person,” said Blackburn, J., ££who intentionally'uses personal violence either in the case of a highway robbery, or to silence a person giving an alarm of burglary, is guilty of murder. ” He may not have intended to kill the alarmist in the latter case, but only to-silence him; but if the means used for that purpose produce his death, the burglar is guilty of murder.
¶5The statute of New York makes: ££ The killing of ahúman being, when perpetrated without a design to effect death by a person engaged in the commission of any felony,” murder in the first degree. The difference between that and our statute is so wide that adjudica*293tions under that statute, are inapplicable to ours, which is almost identical with those of Pennsylvania and Connecticut, where the construction given it in the Earnest and Hopper cases prevails. Lane v. Com., 59 Pa. St. 374; Rhodes v. Com., 12 Wright 396; State v. Dowd, 19 Conn. 388. The cases of State v. Earnest and State v. Hopper are misunderstood. It was not decided in either, that if one, in order to commit a robbery, kills the person he would rob, he is not guilty of murder in the first •degree. The trial court in those cases declared that a homicide committed in the attempt to perpetrate a robbery was, as a matter of law, murder in the first degree. Although the judgment in the Earnest case was reversed, it was not for that .error, and the judgment against Hopper was affirmed, although a similar instruction to that given in the Earnest case was also given against him. We merely condemned it as an erroneous abstract proposition of law, of no consequence in those cases, but might be, in supposable cases. The legislature knew what it was doing when in section 1232, it used the word “murder,55 instead of the broader and more comprehensive term “ homicide; ” and it would be a judicial legislation, I think, for this court to substitute the latter for the former term in reading the statute, and the evil consequences of such an interpretation of the statute will, ere long, be made manifest.