State v. Shock

Supreme Court of Missouri 1878


  • D whipped and beat the deceased who was a boy between 5 and 6 years old with a piece of sycamore fishing pole.
  • The child died several days later from the injuries received at the hands of the D.
  • Defendant contended that the trial court erred in giving a jury instruction that if the jury believed that it was not the intention of defendant to kill the child by whipping him, but that he intended to do him great bodily harm and death ensued, he was guilty of murder in the first degree.

Procedural History:  Defendant appealed a judgment of the Circuit Court of Callaway County (Missouri), which convicted him of murder in the first degree and sentenced him to be hanged. Stay of execution was awarded pending the appeal.

Issue:  Did the trial court err in instructing the jury that he would be guilty of 1st degree murder even if he only intended to do him great bodily injury?

Holding:  The jury might have been properly instructed as to….


1) The words “other felony” used in Mo. Rev. Code, Crimes and Punishments, § 1 (1845) referred to some collateral felony, and not to those acts of personal violence to the deceased which were necessary and constituent elements of the homicide itself, and were, therefore, merged in it;

2) The infliction of great bodily harm was, by the statute, only made a felony when death did not ensue, and when, if it had ensued, the whole offense, including the infliction of the bodily harm, would constitute either murder or manslaughter; and

3) The jury might properly have been instructed as to the law of murder in the first degree, on the theory of a willful, deliberate and premeditated killing, and also as to the law of manslaughter in the fourth degree.

Disposition:  Judgment will be reversed and the cause remanded.

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