The defendant was convicted by a jury in the Circuit Court of Jackson County of murder in the first degree and his punishment assessed at life imprisonment in the State penitentiary. His motion for a new trial being overruled, he prosecutes.this appeal. The State’s theory was and is that the appellant,■ acting in concert with one or more other persons perpetrated the crime of arson by placing a large quantity of gasoline in a certain drug store at 6844 Prospect Avenue, Kansas City, and setting fire to the store, fixtures and stock of merchandise for the purpose of collecting the insurance on the latter. One John R. Morris was a member of the fire department of Kansas City, and with his company responded to an alarm to put out the fire. While he was in the burning building an- explosion took place and Morris was pinned .down in the ruins and burned to death. The contention of the State is, therefore, that the appellant caused the death of Morris and committed -a homicide -in the perpetration of an arson, within the meaning of Section 3982, Revised Statutes 1929, which makes such offense murder in the first degree.
The State’s evidence tended to show that the appellant and another person bought a stock of drugs and store fixtures in June, 1929, and set up a drug store at the address mentioned. They took, out $7500 in insurance on the merchandise and fixtures. The store was a one-story building with basement, located at the northwest corner of Prospect Avenue and 69th Street. There were no buildings north of it in that block. Across the street south was a dwelling house. There was a street car line on Prospect Avenue and the testimony amply supports the inference that the neighborhood was a well populated ■metropolitan district. It appears there were several fire department stations at different places not far distant, and a large crowd of people gathered at the fire as hereinafter described.
A few days prior to August 5, 1929, the appellant and a confederate purchased sixty to seventy-five gallons of gasoline in twelve to fifteen five-gallon bottles, which they placed in the basement of the drug store. There was also a fifteen to twenty gallon drum of naphtha in the store out of which small quantities were sold commercially.
The appellant admitted in a written confession which was put in evidence by the State that on Friday night, August 3, he and his confederate went to the drug store with the intention' of burning it.; but they encountered a policeman on the street out in friont and desisted. The next night, Saturday, they planned to perpetrate the arson but found too many people passing, so the crime was again postponed. The next night, Sunday, or, more accurately Monday morn*714ing at 1:30 a. M. they went to the basement of the store and carried out their plan in this way. A small electric stove was placed in a convenient position and over and around it they piled shredded tissue or crepe paper. .They then began to break the bottles of gasoline so the contents would flow out over the basement floor; but being in a great hurry they simply pulled the corks out of part of the bottles and tipped them-over on their sides. They then turned on the electric stove and fled.
The fire was discovered by a young man waiting for a street car two blocks away. He was attracted by the crash of falling glass and came to the store, where he found the front plate glass window had been blown out so that some of the glass was scattered clear across the street. He turned in a fire alarm at 2:03 a. m. and firemen responded within a few minutes. The fire was soon extinguished, or nearly so, in the store room, and firemen, including the deceased Morris, were on the inside thereof when another explosion occurred. It was so violent that the south wall of the building was blown out, the roof on that side fell down to and partly into the basement, the ground floor of the store buckled up and sagged back down into the basement, and bricks were scattered clear across the street. The building was reduced to a mass of ruins and flames shot high over the whole area. A bystander was blown eighteen feet out into the street between the street car rails. The deceased Morris was pinned down in the ruins and burned to death. The fatal explosion occurred a little before 2:30 a. m., all within an hour after the fire was kindled. No one lived in the building or was in it when the appellant and his confederate left.
The appellant stood on his demurrer to the State’s evidence and offered no testimony in his own behalf. Other facts will be stated as necessary in the course of the opinion.
I, No point is made by appellant on the form of the indictment, and to us it appears to be sufficient. His contention is that even though it be conceded he perpetrated the arson, the further fact is established that he left the premises before the fire began to burn and had no intention of injuring or killing anyone, or any idea that anyone would come to the building and be injured or killed. The position of appellant’s counsel in their brief is that in order to convict a defendant of first degree murder under Section 3982, Revised Statutes 1929, because of a homicide occurring in the perpetration of an arson (or any of the felonies enumerated in the statute) early cases in this State required proof that the defendaiit intended to inflict bodily harm, citing: State v. Jennings, 18 Mo. 435; State v. Nueslein, 25 Mo. Ill, and State v. Green, 66 Mo. 631.
Next they say these early decisions were overruled by later cases which required proof on the part of the State that in the perpetra*715tion of any of tbe felonies mentioned it was the intent of the defendant to kill, citing: State v. Shock, 68 Mo. 552; State v. Earnest, 70 Mo. 520, and State v. Hopper, 71 Mo. 425.
These cases, they assert, were overruled by the decision in State v. Hopkirk, 84 Mo. 278, which reestablished the rale announced in the early Jennings case, supra, 18 Mo. 435; and they contend the law ever since has been and now is that to convict a defendant of first degree murder for a homicide committed in the perpetration of arson or any of the other felonies enumerated in the statute, it is necessary for the State to show a specific intention on the part of the defendant to inflict bodily harm.
This contention in our opinion is wholly erroneous. In discussing it it will be necessary to trace the history of the statute and to discuss certain of the foregoing eases. Prior to 1879 it read as follows (italics hereinafter appearing throughout are ours) :
“Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.” [R. S. Mo. 1845, sec. 1, p. 344; R. S. Mo. 1855, sec. 1, p. 558; G. S. Mo. 1865, sec. 1, p. 778; Wag. Stat. (1870), sec. 3, p. 445.]
In State v. Jennings, 18 Mo. 435, the first case cited by appellant, a man had been flogged to death (but not in connection with a robbery or any of the other felonies specified in the statute). An instruction giv-ep. for the State said though it was not the intention of the defendant and his conspirators to kill the deceased, yet if they did intend to do him great bodily harm, and in so doing death ensued, the killing was murder in the first degree. The court held this instruction correct saying that under the statute a “homicide committed in the attempt to perpetrate any arson (etc.), or other felony shall be deemed murder in the first degree.” The court then went on to say that another section of the statutes (R. S. 1845, sec. 38, p. 351) “makes the person by whose act or procurement great bodily harm has been received by another, guilty” of a felony. This latter section was the predecessor of what we now commonly call the “felonious assault” statute.
So the reasoning of the court in this Jennings case amounted to this: that although the defendant therein had not been perpetrating or attempting to perpetrate any arson, robbery or other specific felony mentioned in the first degree murder statute, yet since he had been flogging the deceased, and since the flogging was, made a felony by the “felonious assault” statute, therefore the act came within the designation “or other felony” in the murder statute. 0.n this ground the instruction was held good. But the case does- not say or mean to *716say that an intent to do great bodily harm must attend every arson or other specific felony mentioned in the ■ murder statute before a homicide resulting therefrom can be classed as first degree murder. The only reason the intent to do great bodily harm was of importance in the ease, was because the court was bringing the flogging within the felonious assault statute as a separate and distinct felony out of •which the homicide grew, and thereby converting the homicide into first degree murder under the murder statute.
The doctrine of the Jennings ease was followed in State v. Nueslein, 25 Mo. Ill, where a man beat his wife, who died though he did not mean to kill her; and in State v. Green, 66 Mo. 631, where a man resisting arrest killed the officer.
But these cases were overruled in State v. Shock, 68 Mo. 552, wherein a man threshed a boy with a piece of fishing rod and a grapevine as a result of which the boy died. The court gave an instruction, as in the Jennings case, that though the defendant did not intend to kill the child by whipping him, yet if he did intend to do him great bodily harm, and death resulted, he was guilty of murder in the first degree.
In condemning this instruction and overruling the Jennings ease the decision called attention to the fact that the “constructive murder” part (as we shall call it) of the first degree murder statute provided “every murder . . . which shall be committed in the perpetration . . . (of) any arson ... or other felony shall be deemed murder in the first degree.” It was pointed out the statute did not say “homicide” but used the word “murder;” and that the section next following went on to say (as it ever since has and does now, Sec. 3983, R. S. 1929) “all other kinds of murder at common law, not herein declared to be manslaughter, or justifiable or excusable homicide, shall be deemed murder in the second degree.” From this the conclusion was reached that the first degree murder statute embraced only killings which would have been murder at common law; that it was merely a statute of classification, not of definition; and since at common law there could be no murder without an intent to kill, such intent was necessary under the constructive murder statute. That is our understanding of the opinion. The same doctrine was followed and stated more explicitly in State v. Earnest, 70 Mo. 520, and State v. Hopper, 71 Mo. 425.
This Shock ease went further. It held (we shall not attempt to detail the course of reasoning) that if, as in the cases thus far mentioned, one person assail another, though without intending to kill him, and the latter person die, the assault and its result are all one offense; that the assailant will be held responsible for the consequences of his act (being malum in se) though he did not intend them; that the assault is simply a constituent element of the homicide, merging *717therein, and not a separate, independent felony; that the "constructive murder” statute need not be, indeed, could not be, appealed to in such instances; and that the words ‘ ‘ or other felony ’ ’ appearing therein referred to some collateral felony, like arson, robbery, etc., and not to acts which themselves constituted the homicide. NoetoN and Sherwood, JJ., dissented in a vigorous opinion by the former, and the case evidently attracted legislative attention, for after the decision was handed down in 1878, the General Assembly in 1879 amended the statute by striking out the words ‘ ‘ or other felony ’ ’ and substituting the words "or mayhem.” [Sec. 1232, R. S. 1879.]
Six years later in 1884, the case of State v. Hopkirk, 84 Mo. 278, 287, -was decided, opinion by Sherwood, J. The defendant and another shot and killed W. in perpetrating a robbery. The decision overruled the Shock, Earnest and Hopper cases, last aforesaid. "While agreeing with them that the "constructive murder” statute was a statute of classification and not of definition, and that it1 embraced only such killings as would be murder at common law, it denied that-at common law no homicide could be murder unless there was an- intent to kill. The contrary was affirmed, that at common law "a homicide committed in the perpetration of a felony was murder, and this, whether there was any precedent intention of doing the homicidal act or not.” citing several English authorities and American cases. Two judges concurred in toto. Ray, J., concurred in the result, saying in a separate short opinion he agreed if the person robbed be killed in the perpetration of the robbery, the offense would be first degree murder; but that it was unnecessary to decide whether the same would be true if the killing were collateral to the robbery — that is if the person killed were a third person.