The defendant in this ease was indicted in the circuit court of St. Louis county, where, upon a trial being had, he was adjudged guilty of murder in the second degree, from which judgment he appealed to the St. Louis court of appeals, where, lipón a hearing, the said judgment was reversed and cause remanded. From this judgment the State has appiealed to this court. The judgment of the St. Louis court of appeals must be affirmed, first, because the circuit court erred in instructing the jury as to murder in the second degree, when, under the facts shown by the evidence, if defendant committed the homicide at all, he was guilty of murder in the first degree, and of no other grade of homicide. State v. Mahly, 68 Mo. 315. Second, because, even if the evidence adduced authorized or justified an instruction in regard to murder in the second de*560gree, the instruction given by the court defining the offense is not in harmony with the decisions of this court. It not only ignores the question of malice as a constituent element of murder in the second degree, but virtually authorized the jury to find defendant guilty of that offense, although they believed the killing was done without malice. Malice is an ingredient in the crime of murder in either degree, and the court erred in telling the jury that they might find defendant guilty without finding malice. State v. Wieners, 66 Mo. 13; State v. Curtis, 70 Mo. 594. The judgment of the St. Louis court of appeals.will therefore be, and the same is, hereby affirmed.
All concur.