dissenting.
I respectfully dissent and concur in the rationale set forth in the dissenting opinion of Donnelly, J. I do so on the basis that, although murder in the second degree is a statutory crime in Missouri, one must, by the terms of the statute (565.004 formerly 559.020), look to the common law for the elements of the offense and I am persuaded that one of the common-law elements was “intent to kill”. I am also persuaded that the intent to kill cannot be supplied by some other intent — e. g., intent to commit sodomy.
In the instant case the indictment charged that defendant, inter alia, “unlawfully, feloniously, willfully, deliberately, on purpose and of his malice aforethought did make an assault upon one [name] in the commission of an act of sodomy, thereby inflicting a mortal wound upon the said [victim] from which ... [he] did die on July 21,1977; contrary to Sections 559.009, 559.-020, Missouri Revised Statutes, ...”
The murder charge was submitted by instruction No. 5 which did not require the jury to And the defendant intended to kill the deceased but authorized a verdict of murder in the second degree upon a finding that defendant caused the death of the deceased by striking him and did so in committing or attempting to commit sodomy.
There was evidence in the case, as stated in the principal opinion, that defendant, in addition to committing the sodomitic act, hit the victim in the head with a rock and buried him under rocks and dirt. There is no contention that the evidence was insufficient to support an instruction under which the jury would have submitted to it the element of intent to kill, as set forth in MAI-CR 15.14 Murder, Second Degree, Conventional, and which would permit the jury to find the defendant guilty of murder in the second degree by intentionally killing the deceased.
I would therefore affirm the conviction of sodomy and reverse the conviction of murder in the second degree for a new trial on that charge or an amended or substitute charge of murder in the second degree.
Neither State v. Olds, nor State v. Morgan, both cited in the principal opinion, prevents the proceedings noted above and neither case holds that a person cannot be convicted of sodomy and second-degree (conventional) murder.