dissenting.
The principal opinion affirms the conviction of second degree felony murder, committed in the perpetration of sodomy.
Historically, Missouri has recognized the common law felony-murder rule under which a homicide committed in connection with a felony other than those enumerated in what is now § 565.003, RSMo 1978, is murder in the second degree. State v. Jasper, 486 S.W.2d 268, 271 (Mo. banc 1972). In Missouri, murder in the second degree must be a kind of murder cognizable at common law. § 565.004, RSMo 1978.
In State v. Wieners, 66 Mo. 13, 20, 21, 22 (1877), the Court undertook to determine “what is murder in the second degree,” and, in so doing, made two significant statements:
“To constitute a killing murder there must be malice aforethought, not that the malice should be thought of beforehand, which would be absurd, as it is but a condition of the mind, but that the act, *59prompted by this malice, should be thought of before, and it signifies properly a homicide, intentionally committed with malice. If one with malice assault another to chastise, and unfortunately kill him, unless there was an intention to kill, express or implied by law from the instrument used, or the nature of the chastisement inflicted, there could be no malice aforethought as to the killing, which was not in the contemplation of the party. To constitute murder, the killing must be with malice aforethought, that is, ‘an unlawful intention to take life must precede the killing.’
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“The word malice * * * is included in the term murder, and malice must exist before any homicide can be declared murder in either degree. Can there be malice aforethought when there is no intention to kill? There are cases at common law with which apparently the doctrine that an intent to kill is of the essence of murder is in conflict, but the conflict is only apparent. If one in perpetrating or attempting to perpetrate a felony, kill a human being, such killing is murder, although not specifically intended, for the law attaches the intent to commit the other felony to the homicide. The law conclusively presumes the intent to kill.”
In State v. Glover, 330 Mo. 709, 719-20, 50 S.W.2d 1049, 1053 (1932), a case involving application of the felony-murder rule to murder in the first degree, the Court cited Wieners with approval, and then articulated the standard “that even though the homicide be unintentional, yet if it be committed in course of perpetrating the felony, and is a natural and proximate result thereof, such as the defendant reasonably was bound to anticipate — and therefore especially where the felony is dangerous and betokens a reckless disregard of human life — the homicide will be first degree murder under the statute.”
On November 24, 1980, the Supreme Court of Michigan in People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980), abolished the felony-murder rule in Michigan. The opinions written in Aaron are published and need not be quoted here. It is enough to say that they exhaustively review the rule, and, at least for me, are devastatingly persuasive. Most importantly, they rest comfortably upon a basic tenet of our criminal law:
“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. * * *.” Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952).
In my view, the use of the felony-murder rule (where an intention to kill is not required — where the law attaches the intent to commit a felony to the homicide) to convict and punish for murder, violates the Missouri Due Process Clause. Mo.Const., Art. I, § 10.
In my view, the holding in State v. Olds, 603 S.W.2d 501 (Mo. banc 1980) is extraneous. I would reverse the second degree murder conviction and affirm the sodomy conviction.
I respectfully dissent.