Dissenting. — As I do not concur either in the conclusion announced by the court, or in. the reasoning on which it is based, and as the question involved is one of great importance, it is but proper that my reasdus for dissent should be given. The main point of controversy grows out of the action of the trial court in giving the following instruction, viz.: “ If the jury believe from the evidence that it was not' the intention of the defendant to kill the child, Scott, by whipping him, but that he did intend to do him great bodily harm, and in so whipping him death ensued, he is guilty of murder in the first degree.”
It may be announced as a principle well established that when a statute of another State having received judicial construction, is adopted in this State, it is usual and ■ proper to give it the same construction there placed upon it. So, when a statute has been construed by this court, and it is subsequently re-enacted by the General Assembly without alteration or change in any respect, it is to be understood as having been enacted in the sense in which it has been judicially interpreted. The precise question *569presented in this ease first arose in 1853, in the case of State v. Jennings, 18 Mo. 435, and involved a construction of the same sections of the statute relating to murder in the first degree, and to the crime of inflicting “great bodily harm” upon another, and it was then held that if A intended to inflict .upon B great bodily harm, and in so doing death ensued, such killing was murder in the first degree, although A did not intend to kill B. The reason assigned for the conclusion reached was, that under section thirty-eight of the revised statutes of 1845, it was made a felony for one person to inflict great bodily harm upon another, under circumstances neither justifiable nor excusable, and that section one of the same statute, defining murder, declared that every homicide committed by another while perpetrating, or attempting to perpetrate any felony, was murder in the first degree. This construction was approved by the General Assembly in the revised statutes of 1855, when they ré-enacted the same sections in the same words, and they again approved it in 1865, by l’e-enacting in the general statutes of 1865 the same sections without change.
The same question of construction again arose in 1857, in the case of State v. Nueslein, 25 Mo. 111, and the construction given to the sections in the case of State v. Jennings, was fully approved by an undivided court. The question again árose in the case of State v. Green, in 1877, and the above cases were fully sanctioned. The principle was again sanctioned in the case of State v. Swain, decided at the present term. I can not, therefore, consent to overthrow both such judicial and legislative construction of the statute relating to what is murder in the first degree, unless it be made clearly to appear, by adjudicated cases based upon the construction of a statute similar to our own, or by incontrovertible reasoning that such construction can neither be maintained on principle nor authority.
The authorities referred to for the purpose of demonstrating. that such construction is erroneous fall short of *570establishing the proposition. The principal authority referred to is the case of People v. Rector, 19 Wend. 605. In that case the court was called upon to say whether the trial judge committed error in refusing to instruct the jury “ that if they came to the conclusion that the prisoner inflicted the mortal wound upon the deceased in an attempt to commit an offense which of itself was less than a felony, then he should not be convicted of murder.” This instruction was refused by the trial judge because, as he said, it “ was inapplicable to the case.” In disposing of the question thus presented, it became necessary for the court to consider two sections of the New York statute relating to murder and manslaughter in the first degree. That relating to murder declares a killing to be murder “ when perpetrated by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” • That relating to manslaughter provided, as does our statute, “ that the killing of a human being, without a design to effect death, by the act, procurement or culpable negligence of any other, while such other is engaged in the perpetration of any crime or misdemeanor not amounting to a felony, or in an attempt to commit any such crime or misdemeanor in cases where such killing would be murder at common law, shall be deemed manslaughter in the first degree.” Each of the three judges composing the court delivered separate opinions on the point presented. Judge Cowen was of the opinion that the charge should have been given because the statute defining manslaughter was intended “to reduce the offense to manslaughter in the first degree in all cases where the jury shall find the assailant intended to stop with the commission of a misdemeanor although the blow were aimed at the person.” 19 Wend. 593. Judge Bronson held that the charge was properly refused by the trial court because “ such a charge could only be proper where the accused was committing, or attempting to commit, some other *571offense than that of intentional violence upon the person killed.” 19 Wend. 605. Judge Nelson expressed the opinion that the charge was properly refused because it withdrew from the consideration of the jury the higher offense of murder, under which it might fall under the provision of the statute which makes killing murder, “ when perpetrated by any act imminently dangerous to others and evincing a depraved mind regardless of human life, although without premeditated design to effect death.” He observes “ that within this provision, the offense may he committed where the actual intent at the time may be to commit an offense under the degree of felony ; it may be simply to commit an assault and battery, and still if death ensue under the circumstances alluded to in the statute, the killing may be murder.” He concludes by saying that “ upon the whole he concurs in the conclusion, principally on the first point considered this point related to the admissibility of evidence. So that of the three judges only one of them expressed the opinion that the crimes or misdemeanors alluded to in the section defining manslaughter in the first degree related to some crime or misdemeanor other than that of intentional violence upon the person killed. The case cannot, therefore, be properly quoted as an authority to establish the proposition that the other felony referred to in our statute defining murder in the first degree must be a distinct felony from one committed on the person whose death is occasioned by the perpetratiou, or attempt to perpetrate, a felony. I have been thus particular in analyzing the case of the People v. Rector, supra, because it is the basis of the opinion expressed by the court of oyer and terminer in the case of the People v. Butler, 3 Park. C. C. 377, and of that expressed by Judge Wagner in the case of the State v. Sloan, 47 Mo. 604.
Having shown that only one of the three judges in the case of the People v. Rector, assented to the principle announced in the case of the People v. Butler, and the State v. Sloan, it follows that the two latter cases are without *572support by the former,- and as the opinion announced by my associates is founded mainly on the above cases it does not rest on authoritative foundation.
It may be conceded that no homicide committed in this State can under Wag. Stat., sections 1, 2, p. 445, be' murder in either the first or second degree unless such homicide was murder at common law. That the defendant in killing the child under the circumstances disclosed in the evidence would at the common law have been guilty of murder cannot be questioned. At common law, the intent to do “enormous” or severe bodily harm followed by homicide constitutes murder * * So “ if A only intend to severely beat B in anger from preconceived malice and happen to kill him, it will be no excuse that he did not intend all the mischief that followed, for what he did was malum in se and he must be amenable for its consequences. He beat B with the intention of doing him great bodily harm and is therefore amenable for all the harm he did.” Whart. on Homicide, sec. 40, p. 40.
So the defendant in this case in the light of the facts developed by the evidence would, at common law, have been guilty of murder. Is this common law murder under our statute murder in the first or second degree or manslaughter in the first degree? Wag. Stat., sec. 1, p. 445, declares that “ every murder * * committed in the perpetration or attempt to perpetrate auy arson, rape, robbery, or burglary or other felony, shall be deemed murder in the first degree.” If, therefore, the defendant was engaged in the perpetration of a felony in beating the deceased, a child five years old, with a fishing-pole, one and a half inches in diameter, and a grapevine one and one-fourth inches in diameter, in a most cruel manner, and the death of the child was' the result, it necessarily follows that the homicide thus committed falls within the statutory definition of murder in the first degree and can be nothing less. That defendant in thus beating the child w,$,s engaged in the perpetration of a felony is manifest *573from "Wag. Stat., sec. 33, p. 450, which declares that “if any person shall be maimed, wounded or disfigured, or receive great bodily harm, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act such injury or danger to life shall be occasioned, shall be punished by imprisonment not exceeding five years, &c.” This statute makes it a felony for any person to inflict great bodily harm upon another under circumstances neither justifiable nor excusable, and it necessarily follows that if the defendant was inflicting, and only intended to inflict great bodily harm on the child under such circumstances and then stop, he was engaged in the perpetration of a felony. If in the commission of this felony, the death of the child was occasioned, whether defendant intended it or not, then the inflexible definition of the statute iu regard to what is murder in the first degree -characterizes the crime of defendant as of that and of no other class.
In speaking of this subject, Wharton (Whart. on Horn., sec. 58, p. 58.) lays down the rule to be that “ where a Legislature thus creates a statutory offense, the statutory definition is absolute.” Again.in sec. 40, p. 40, “where a statutory line is to be followed it has been held that when the damage intended was such as would probably result in death, it is murder in the first degree, even though the death may have been but incidental to the offender’s purpose.” Had death not resulted from the severe injuries and great bodily harm inflicted upon deceased, it cannot be denied that for the infliction of the injuries as stated in the opinion of the court and as shown by the evidence, without- justification or excuse, the defendant would have been amenable to a prosecution for a felony under section 33. In committing this felony the death of deceased was occasioned, and the statute interposes with its “absolute rule” and declares that a murder committed under such circumstances shall be deemed murder in the first degree. There is no ambiguity in the language of the act; it is plain and *574explicit in the declaration that every murder committed in the perpetration or attempt to perpetrate any felony shall be murder in the first degree. “ Statutes are to be interpreted according to their natural and obvious meaning and where there is no ambiguity in the language and its meaning and purpose are clear, courts are not authorized either to limit or extend the act by construction.” Cearfoss v. State, 1 Am. Crim. Cas. 460. I cannot, therefore, accept a construction of the statute which limits the operation of the words, “ other felony,” only to those felonies which are distinct and separable'from a felony committed on the person whose death is occasioned in the commission of the felony.
The felony committed by B in inflicting great bodily harm on A, under unjustifiable or inexcusable circumstances, is no more merged in the killing of A if death is occasioned thereby, than would the felony of B in committing a rape on A, resulting in A’s death. If B starts, out with a fixed felonious purpose to “ inflict great bodily harm” on A, under circumstances neither excusable nor justifiable, without intending to kill but to stop with the infliction of great bodily harm and death ensues, the felony committed in inflicting the great bodily harm is no more merged in the killing than would a rape perpetrated by B upon A, which resulted in the death of A, be merged or lost sight of in the death of A. The crime in either case would be murder in the first degree, notwithstanding the violence used in committing the rape and in inflicting the injuries occasioning the death would necessarily be directed against the person killed and would be the sole cause of the death, though not inflicted with a murderous intent and purpose. It is said in the statute that murder “ committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be murder in the first degree.” In all these enumerated cases the General Assembly has declared the law that the perpetrator shall be held guilty of murder in the first degree, without fur*575tber proof that the death was the ultimate result which the will, deliberation and premeditation of- the party accused sought. Neither of the two specified crimes of rape or robbery could be committed without an assault directed against the person of the one raped or robbed. So there are included in the words, “ other felony,” a large number of crimes classified as felonies, which could not.be committed except by violence directed against the person. It is made a felony by our statute for one person, on purpose and of malice, to cut or disable the tongue, or to cut off or disable any limb or member of another with intent to kill, maim or disfigure him. Now, if A, in feloniously cutting off the tongue of B, or in feloniously castrating him with no other intent than to maim or disfigure him, occasions his death, can it be said that it was not the intention of the Legislature that he should be held answerable for murder in the first degree, although his specific intent was only to maim and not to kill, and that the felony thus committed, being directed agaiust the person whose death was occasioned by its commission was not, for that reason, such a felony as was contemplated by the General Assembly in the use of the words, “ other felony,” in defining the ci’ime of murder in the first degree?
A further illustration may be drawn from section 33, supra, which makes it a felony where any person shall be maimed, wounded or disfigured, or receive great bodily harm, in cases and under circumstances which would constitute murder or manslaughter, if death ensued. Now, if A, with no intent to kill B, but with a purpose to maim him and send him through life a limbless man, should, on purpose, without cause or excuse, cut off the hand of B, the felony would be consummate and complete as soon as the act of maiming was done, and A would be liable to immediate arrest, trial, conviction and punishment for the felony. If B should, thereafter, die within a year, his death being occasioned by the maiming, A would be answerable for the murder, although the act of maiming *576would constitute a necessary ingredient and element of the homicide. Now, the homicide thus committed would be murder at common law. What would this common law murder be under the construction given to the first and thirty-third sections, in the opinion of the court? A could not be convicted of murder in the first degree for a willful, d'eliberate and. premeditated killing, because the facts of the supposed case show that he did not intend to kill, but only to maim; nor could he be convicted of murder in the first degree for killing B in committing the felony of maiming him, because the felonies mentioned in the thirty-third section are said not to be embraced in the words “ other felony,” used in the first section defining murder. Nor could he be convicted of murder in the second degree, because, as this court has held in the case of the State v. Wieners, 66 Mo. 13, an intentional killing must be shown befoi’e a conviction can be upheld in that degree. Nor could he be convicted of manslaughter in the first degree, because, before a conviction can be had in that degree the party charged must be shown to have committed the homicide in committing a crime or misdemeanor not amounting to a felony. Every other section of our statute defining manslaughter in the second, third and fourth degrees, would be alike inapplicable, and the result would be that the perpetrator of the common law murder, thus committed, could not, under our statute, be punished at all, if the construction placed upon sections one and thirty-three, swpra, is to prevail.
In my opinion, the construction placed upon section thirty-three, that it makes the infliction of great bodily harm only a felony when-death does not ensue, and that if death does ensue it is made murder or manslaughter, according to circumstances, is not warranted by the language of the act. Whether the infliction of great bodily harm, in cases and under circumstances which, if death ensued, would be murder or manslaughter, is a felony or not, does not depend upon the question whether the party injured *577dies or lives, but upon the circumstances under which the act was done; and if the circumstances attending the act do not show justification or excuse, the felony is complete; and if death does ensue, the character or degree of the homicide is not determinable by the provisions of section thirty-three, but by section one of the statute, which provides that a murder committed in the perpetration, or attempt to perpetrate, a felony, shall be murder of the first degree, thereby announcing in unmistakable terms the “ absolute rule” before mentioned.
I cannot subscribe to the doctrine announced, that the words “other felony,” used in the first section, defining murder in the first degree, refer to some collateral felony, and not to those acts of personal violence to the deceased which are necessary and constituent elements of the homicide itself, and are, therefore, merged in it. This construction abrogates the section, and under it A, who shoots at B with intent to maim him only, (which is a statutory felony,) and kills C, would be guilty of murder in the first degree; while if the shot intended only to maim had killed B, he would only be guilty of some lower grade of homicide. It is conceded that if the death ensues from the perpetration, or attempt to perpetrate, any of the specified felonies, viz.: arson, rape, robbery or burglary, the offense would be murder in the first degree. Why should it not be so in regard to any other felony? The language of the law is, if the murder is committed in the prepetration of the enumerated felonies, or “ other felony,” it shall be murder in the first degree. The words “ other felony ” are comprehensive enough to embrace every felony defined by the statute, and it is for the Legislature, and not for the courts, to restrain their operation. The oxime of inflicting great bodily haxun, as defined by section thirty-three, is just as susceptible of perpetration, although the murder is also committed as is rape or robbery. The rape is consummate when penetration is made by force, and against the will and consent of the person; and if death ensues from the vio*578lence inflicted in the perpetration of the rape itself, the crime of murder under the first section at once appears, although the acts of personal violence to the deceased were necessary and constituent elements of the offense. So it may be said that when A intentionally inflicts great bodily harm on B, under circumstances which the law neither .excuses or justifies, the crime of felony is consummate as soon as the “ great bodily barm ” is inflicted, and he may at once be arrested for the felony, put upon his trial and punished; and if B suffer and linger from the bodily injuries thus received, and die within one year and a day by reason of tbe “ barm ” so inflicted, the perpetrator of the offense may be also indicted and put upon his trial for the murder. Eor if one be convicted of an assault and battery, or assault with intent to kill, and afterwards the injured party dies within a year and a day of the wounds inflicted, such conviction would be no bar to an indictment for murder or manslaughter. Kelly’s Crim. Law, § 222, p. 119; 12 Pick. 496; 3 Dev. & Batt. 98: 1 Park C. C. 183; 5 Ind. 527. The crime of inflicting great bodily harm under circumstances neither excusable nor justifiable, which occasioned the death of the person injured, is as separable and distinct from the homicide as is the crime of rape which occasions the death of the person upon whom it is committed, separable and distinct from the homicide. Both are felonies under the statute ; and if in committing either, death ensues as a necessary consequence, the law pronounces, with inflexible certainty, the crime murder in the first degree.
In the case of State v. Green, 66 Mo. 631, the court instructed the jury to the effect that if the deceased was a deputy marshal of Jackson county, and had in his possession a warrant for the arrest of defendant, and exhibited the same to defendant, and informed him of its contents, and was proceeding in a quiet manner to arrest defendant, and defendant resisted such arrest, and shot and killed deceased to avoid arrest, such killing was murder in *579the first degree. This instruction was expressly approved on the authority of the case of the State v. Jennings, supra. It is difficult to conceive how the crime of resisting an officer can be committed without personal violence to the officer, and such personal violence resulting in the death of the officer would constitute a necessary ingredient and element of the homicide, and although such violence was directed against the person, it would be murder in the first degree under our statute, as was held in that case. By what authority can it he said that this or that felony is. not included in the words “ other felony,” used in the statute? The words are bi’oad enough to include all. And if we abandon the absolute statutory rule, what test is to be .adopted or rule established by which we are to determine whether this felony was intended, and that felony not? The statute is a declaration to all citizens of the State that whoever in committing, or attempting to commit, a felony, commits a homicide, which would be murder at common law, shall be guilty of murder in the first degree.
Nor can I assent to the conclusion announced that the facts of this case, disclosing, as they do, a case of murder at common law occasioned by the infliction of great bodily harm, would justify an instruction for manslaughter in the fourth degree. Wag. Stat., sec. 17 p. 447, defining that grade of manslaughter, could not apply, because the killing must be done under it “by means neither cruel nor unusual, in the heat of passion.” The killing in this case was done by the most cruel means, and without heat of passion. Wag. Stat., sec. 18 pp. 447, 448, defines manslaughter in the fourth degree as “every other killing of a human being by the act, procurement or culpable negligence of another, which would be manslaughter at common law, and which is not excusable or justifiable, or is not declared in this chapter to be manslaughter in some other degree.” This section cannot be held to apply here, because it is conceded, and the facts unquestionably show, that the killing of the deceased by the accused was murder *580at common law, and every manslaughter at common law is governed by Wag. Stat., sections 1, 2 and 7, pp. 445, 446, and is, under these provisions, either murder in the first or second degree, or manslaughter in the first degree.
Judge Ryland, who wrote the opinion iu the case of the State v. Jennings, supra, in the use of the words “ homicide committed in inflicting great bodily harm,” used them with reference to the facts involved in the case he was considering. The facts established that the homicide was unquestionably murder at common law, and that the bodily harm inflicted on Willard, whose death resulted, was without any justification or excuse. The language employed by him is, therefore, only open to verbal criticism, which in no manner affects the correctness of the conclusion reached, which was, that “ although it was not the intention of those concerned in lynching Willard to kill him, but they did intend to do him great bodily harm, and in so doing death ensued, such killing is murder in the first degree by the statute of the State.” It would have been a work of supererogation for the court in that ease to have added, after the words “ great bodily harm,” in the instruction, the words “ without just cause or excuse,” as there was not a particle of evidence even tending to show such cause or excuse. Had such words been added, it would have been the duty of the court to have further instructed that, under the evidence, there was no just cause or excuse for inflicting the great bodily harm. So in the case at bar; all the evidence showing that the defendant inflicted the beating on the deceased child without the slightest excuse, iu a most barbarous manner, as detailed in the opinion of the court, it would have been a useless act for the trial court to have added the words “ without justification or excuse,” to the words “great bodily harm,” where they occur in the instruction, and thus have required the jury to have found a fact which, under the evidence, it would have been the duty of the court to have told them,' in another instruction, they could not find.
*581It is true tbat the court might well, as it did in an instruction, put the case before the jury on the theory of a willful, premeditated and deliberate killing on the part of defendant. While this is true, it is equally true that there was another theory more properly applicable to the facts of the case, upon which the State had a right to demand, at the hand of the court, it should be put to the jury, viz.: that every murder committed in the attempt to perpetrate rape, robbery or other felony, is murder in the first degree, without reference to the question of intent to kill on the part of defendant. ■ I, therefore, think that the court committed no error in submitting the case to the jury on both the theory of a willful, premeditated and deliberate killing, and a killing committed in perpetrating a felony without intent to kill.
Sherwood, C. J., concurs in the views above expressed.