(concurring in part and dissenting in part).
The opinion by Holman, J., and the opinion concurring in result by Bardgett, J. (soundly, I believe) do not attempt to place the decision on the ground that conventional murder is a lesser included offense of felony murder first. In my opinion it is not, and the thesis advanced in State v. Bobbitt, 215 Mo. 10, 114 S.W. 511 (1908) that first degree felony murder involves deliberation and premeditation is no more than fiction. There are many instances where neither one is present in a felony murder case. The present case is one. Defendant was trying to avoid decedent’s death, not cause it. We should recognize that first degree felony homicide is first degree murder because the legislature has so decreed. It has defined the crime and fixed the punishment. Defendant’s mental state as to taking a human life is immaterial. Numerous cases so hold. See State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033, 1037 (1932), for example. The fact that defendant participates in a named felony and that a death occurs in the course thereof is all that is required. As proof of this, one need look only at the MAI-CR instructions on the subject, MAI-CR 6.16-6.19. The jury is not required in any of them to find deliberation or premeditation, and if we were to require it in first degree felony murder instructions, the state would be the first to complain that we were requiring it to assume an unnecessary and unwarranted burden.
My dissent has to do with the ruling set forth in the opinion by Holman, J., that on the basis of certain statutes and a rule referred to in his opinion, defendant has no just cause to complain of his second degree murder conviction. It seems to me these statutes and the rule do not meet the objection defendant is raising. He is not complaining that the evidence shows him guilty of a higher degree of the offense than that of which he was convicted. He is complaining that he was convicted of second degree *891murder without any evidence to support the conviction. That is the question before us, not whether there was evidence in the case which, if believed, would support a conviction for some other offense.
I do not believe that any of the statutes or the rule referred to means that a defendant cannot complain if he is convicted of an offense which the evidence does not show he committed. To hold otherwise would be perverse, lawless, and unconstitutional doctrine. The fact that the outcome could have been much worse for a defendant than it was is not a rational basis on which to affirm convictions not supported by the evidence. It amounts to making the crime fit the punishment. These statutes and the rule overlook the fact there is no such thing as a directed verdict of guilty. How can the evidence show a defendant “to be guilty” of a higher crime when it turns out that he is not convicted of it? We do not ordinarily go on the principle that because there is evidence tending to establish a proposition it follows that the proposition is established even though the jury (or whoever is the trier of the fact) decides otherwise. What does follow in such case is that the factfinder did not accept the contrary evidence. The state elected to prosecute this defendant for felony murder, but failed to convict, even though it made a submissible case. This furnishes no basis for finding defendant guilty of something else which the evidence does not support. Indeed, no claim is made by the state that the evidence supports a second degree murder conviction other than the untenable claim that second degree murder is a lesser included offense of first degree felony murder.
The opinion by Judge Holman makes reference to State v. Bobbitt, supra, and to State v. Jewell, 473 S.W.2d 734 (Mo.1971), which relies on the Bobbitt case. It is difficult to determine on what theory the court in State v. Bobbitt rested its decision. The information, which is set out verbatim in the opinion, charged defendant with conventional first degree murder — an assault with others by shooting the victim with a pistol. The proof was that defendant owned a farm and desired to evict the tenant. To that end he induced certain parties to set fire to the tenant house about midnight. Shortly thereafter the fire was discovered by the tenant, who came outdoors with his pistol, whereupon one of the group shot and killed him. Defendant was elsewhere at the time. The court instructed the jury on first degree felony murder, but ended the instruction, astonishingly, with the direction that the jury should then find defendant guilty of second degree murder and assess his punishment at imprisonment for not less than ten years. In addition to the language at 114 S.W. 1. c. 517 quoted by Judge Holman, the court, in Bobbitt also said as follows at 114 S.W. 1. c. 520: “. It cannot be said of this instruction that it did not embrace the essential elements of murder in the second degree, because murder in the second degree is included in murder in the first degree . . . ” If the court meant what it said in the language just quoted, then the Bobbitt decision can equally be said to rest on the proposition that second degree murder is included in first degree felony murder and not on the statutes which are now Secs. 545.030 and 556.220.
Whatever the basis for the decision, if State v. Bobbitt stands for affirming a conviction which is without evidence to support it, it is a sixty-seven year old aberration which we should overrule here and now.
Judge Bardgett has pointed out in his opinion where he believes the evidence supports a conviction of second degree felony murder. As I read the record, under the evidence the trial court unquestionably could reasonably have found that defendant associated himself with the venture. One witness testified defendant made the suggestion that they “take off” the man next door and that Willie Dove and Sammy Lewis could go in first and put something over his face, because the victim would know defendant and the fourth man, Nathaniel Johns. There was also evidence that about *89210 or 15 minutes after Dove and Lewis went into the victim’s apartment defendant and Johns did likewise. One witness said there was no noise coming from the victim’s apartment at the time defendant and Johns left the car to go to the apartment. Another (Nathaniel Johns) testified there was noise and that the purpose in his and defendant’s going to the victim’s apartment was that “if the people next door heard all that noise, they was going to come out in the back.” Either version is consistent with defendant’s going to the apartment to participate in stealing or robbing. In about 10 or 15 minutes thereafter, defendant and Johns returned, empty-handed, but “then” (it is not shown how soon this was), Dove and Lewis also came back to the car, Dove carrying a radio. Under these facts, it could reasonably be inferred there was more involvement by defendant than mere consent that something be stolen from the victim or his apartment. There was also a certain amount of active participation by defendant in the stealing of the victim’s radio, enough to make him guilty of aiding and abetting in the crime. For these reasons and the reasons stated in the opinion concurring in result of Bardgett, J., I concur in the affirmance of the judgment.