I concur in the reasoning and in the conclusion reached in the majority opinion. The Attorney-General in his brief asked this court specifically to approve an instruction defining "deliberately" as given in this case, and overrule State v. Sharpe, 326 Mo. 1063, 34 S.W.2d 75, where such definition was held to be no definition of the word. *Page 491
The Attorney-General is within his rights in criticizing the opinion in the Sharpe case, for it failed to explain specifically why the definition of "deliberately" was bound to mislead the jury. Also he had a right to contend strenuously for the approval of that particular definition, because it has received the sanction of this court several times.
Definitions of words used in statutes, pleadings, instruction and other legal documents should be precise and as exact as language can make them. A definition should define, set limits, include all essentials and exclude all foreign elements.
The first rule of construction is that words used in statutes and legal documents must be given their usual and ordinary significance. The statute defines murder in the first degree as applicable here, Section 3982, Revised Statutes 1929:
"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."
Of course it is presumed that the use of poison and lying in wait are sufficient proof of the willful, deliberate and premeditated killing. Murder, as the term is used in that statute, means murder at common law "killing a human being with malice aforethought," and "malice" means "without justification or excuse." The definitions of murder vary, but in substance they all amount to that. So we have for murder in the first degree this usual definition:
Willful, deliberate and premeditated killing of a human being without justification or excuse. [1 Wharton on Criminal Law, 587-8.]
It will be noted that deliberation is one element in that crime. Other elements are supplied by the other words. All of them must be used in order adequately to define murder in the first degree, according to that statute. The definition of "deliberately" in this case and in the Sharpe case makes that term not only perform its own office, but supplants several of the other words used in defining murder in the first degree and goes even further and applies a motive for the crime. This is the definition (326 Mo. 1067, 34 S.W.2d 76):
"`Deliberately' means in a cool state of blood; it does not mean brooded over or reflected upon for a week or a day or an hour, but it means a conscious purpose to kill formed in a cool state of the blood, and not under a violent passion aroused by some real or supposed grievance, but in the furtherance of a formed design to gratify a feeling of revenge, or to accomplishsome other unlawful act."
"Deliberately" is an adverb as used in that instruction and in the information in this case, which charges that the defendant did *Page 492 "feloniously, willfully, deliberately and premeditatedly, on purpose and with malice aforethought," etc. That definition not only qualifies or describes the formation of the criminal purpose, but also it is the criminal purpose. "It means a conscious purpose to kill," says the definition. It is not merely a grammatical inaccuracy: it is a logical absurdity. Nevertheless that expression is usually harmless, for the jury would naturally gather that the cool forming of the purpose to kill was meant. But the definition goes further. It not only covers nearly all the elements constituting murder in the first degree, but it also covers the motive for committing the crime. It is "in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful act." It implies that murder in the first degree could not be accomplished unless there was proof to establish a motive, the averment of which motive being implied in the use of the word "deliberately."
Many convictions of murder in the first degree occur where no motive whatever could be discovered. In that case a conviction would have to be reversed in the absence of a proven motive. Let us take some of the cases relied upon by the State in defense of that definition. In State v. Furgerson, 162 Mo. 677, the court said, criticizing the definition of "deliberately" as "done in a cool state of blood:" "It omits an essential element of deliberation, that is, that the homicide must have beencommitted in the furtherance of a formed desire to gratify a feeling of revenge or to accomplish some other unlawful purpose."
The same judge who approved the instruction with that definition also approved one just like it in State v. Grant,152 Mo. 70. There we have it. It is not merely an illustration of an instance where the definition would apply. It is the definition, under which no homicide could be "deliberately" accomplished with the element of motive omitted. Under that definition, in order for a homicide to be deliberately accomplished it "must have been committed in the furtherance of a formed desire to gratify a feeling of revenge or to accomplish some other unlawful purpose." "Deliberately" must not only include the motive for the crime, but it is limited to just the motives mentioned in that definition. It must be in revenge or to accomplish some other crime. Murder in the first degree has been committed deliberately from motives of jealousy, from motives of hate engendered for other reasons than by revenge. Some years ago two Chicago youths, now serving life terms, murdered a fellow-student in order to witness the phenomenon of death. Under that definition of deliberately it would not be murder in the first degree.
Another thing, that definition makes "deliberately" or "deliberate" the peculiar property of murder, as if the word could not be *Page 493 applied to any other human act. A man may kill deliberately in self-defense. It would not be murder at all. A man may deliberately eat his breakfast. Suppose we apply this definition to that function. A man eats his breakfast deliberately; that is to gratify a feeling of revenge or to accomplish some other crime (other than eating his breakfast).
But look again. Take the closing clause: "To accomplish some other unlawful act." The expression is ambiguous. Does it meanin order to accomplish some other crime? or does it mean inaccomplishing some other crime. If it has the former meaning it would be wholly inappropriate and misleading in the Sharpe case. It would mean that Sharpe committed the homicide in order that he might successfully commit the larceny and that he formed the design deliberately to commit the homicide for that purpose. Whereas, the larcency had been committed, the loot abandoned and the homicide occurred in a chase by outsiders who were making attempts upon Sharpe's life. But suppose the jury understood that clause to have the latter meaning, that the killing occurred in accomplishing some other unlawful act. That would give to larceny the same significance as the other felonies mentioned in Section 3982, Revised Statutes 1929, which substitute for deliberation. That evidently is what the jury thought. No one can read the record, or even the opinion in that case, and believe the jury found that the homicide occurred in a cool state of blood. The evidence of such deliberation is so extremely weak that they must have thought him guilty of murder in the first degree because he was attempting to escape after the commission of a larceny.
The definition of deliberately in this case and in the Sharpe case is not supported by authority even in this State. It occurs nowhere as a judicial expression of the meaning of the term in this State or any other, except in the approval of this sort of an instruction. By consulting the encyclopaedias and reference books one will find that the definition is limited to Missouri and possibly one other state. [29 C.J. 1104-1105.]
The principal cases cited by the Attorney-General cite in turn State v. Ellis, 74 Mo. l.c. 214, where "deliberately" is defined in an instruction as follows:
"`Deliberately' means in a cool state of blood and is usually used to characterize what are ordinarily termed cold-blooded murders, such as proceed from deep malignity of heart and are prompted by motives of revenge or gain."
Notice how that definition differs from the pronouncements in the Furgerson case and the Grant case, supra. The motive of revenge is mentioned as an illustration, not as a necessary part of the definition. In the Furgerson and Grant cases where it is held that the *Page 494 homicide "must have been committed . . . for revenge or to accomplish some other crime," the motive is a part of the definition.
In State v. Ward, 74 Mo. l.c. 256, occurs a definition similar to that in the Ellis case. It was so discussed in State v. Kotovsky, 74 Mo. 249.
In State v. Bobbst, 269 Mo. l.c. 225, the Court said:
"The court defined the word `deliberately' as `done in a cool state of the blood, and not in a sudden passion engendered by lawful or some just . . . provocation.'"
The court continued:
"Appellant contends that the above quoted portion of the definition conflicts with one given in State v. Davis,226 Mo. 493, l.c. 515, to-wit, `in a cool state of blood and not under violent passion suddenly aroused by some real or supposed grievance.'"
The court further said:
"We are inclined to the opinion that the instruction complained of is in better form and more accurate than the one quoted in State v. Davis, supra, and that the court did not err in giving the same."
The definition in State v. Davis, 226 Mo. 515, is given in full, and is as follows:
"`It does not mean brooded over and reflected upon for a week, or a day or an hour; but it means a conscious purpose to kill, formed in a cool state of blood and not under violent passion suddenly aroused by some real or supposed grievance.'"
The motive which in the Furgerson case and Grant case was held essential is omitted. The court probably considered the expression "it means a conscious purpose to kill, formed in a cool state of blood" as an illustration, for it is not mentioned as part of the definition. Disregarding rules of grammar it could easily have been understood as "it means the cool forming of a conscious purpose to kill."
The definition in the Bobbst case is approved specifically in Ex parte Burgess, 309 Mo. 404.
In State v. Liolios, 285 Mo. l.c. 21, the discussion of the meaning of "deliberately" in the Kotovsky case, 74 Mo. 249, was approved.
There are several reasons why this definition has been allowed to stand in numerous cases which have come to this court. It is in printed forms used in St. Louis and Kansas City. It is usually favorable to the defendant, and appealing defendants do not question the particularly inappropriate parts of the definition pointed out above. The language used in that definition is very appropriate in other instructions in some trials of murder in the first degree as part of the law of those cases. It is not appropriate to put nearly all the law of a case in the definition of one word as is undertaken to do here. The motive which may lead to homicide, the feeling of *Page 495 revenge, or to accomplish some other crime might appropriately come into the evidence in explanation of the surroundings, the reason for the commission of the crime. Such evidence might throw light on why the deliberate intention to commit the crime gets into the mind of the murderer. But it is like any other incident that may throw light on that. It is no part of the definition of the quality of the mental process. "Deliberately" does not mean the surroundings and circumstances which lead to the mental act. It describes the character of that mental act; not the thing that caused it. Plainly, if the definition of deliberately, as set out in the Bobbst case, is correct, then the definition in the case of State v. Fairlamb, 121 Mo. 146, in the Grant case and the Furgerson case, supra, are wrong. For the former leaves out the very part which the latter say must be in. Being later, the ruling in the Bobbst case overruled the other two. Therefore the conclusion in the Sharpe case is correct, and the definition of "deliberate" in this case is incorrect, though harmless because favorable to the defendant.