Appellant was found guilty of murder in the second degree and sentenced to 60 years in the custody of the Missouri Department of Corrections. On appeal the Missiouri Court of Appeals, St. Louis District, reversed and remanded for new trial but thereafter sustained appellant's motion to transfer to this Court because of the general interest or importance of questions involved in the case (pursuant to Rule 83.02, V.A.M.R. and Art. V, § 10, Mo. Const. V.A.M.S.). We now decide the case as though here on direct appeal, but in so doing we utilize without quotation marks parts of the opinion written in the Court of Appeals by Judge Kelly. We reverse and remand.
Appellant was charged with first degree murder in killing Victoria Fisk. He pleaded both not guilty and not guilty by reason of mental disease or defect excluding responsibility pursuant to § 552.030.
On July 15, 1967, appellant shot and killed Victoria Fisk. For some time prior thereto, appellant and Mrs. Fisk's daughter Pat had maintained an amorous relationship which was not sanctioned by Mrs. Fisk or her husband, Elbert Fisk. Appellant and Pat, although still married to others, lived together at different times, both in St. Louis County and in California. Their relationship was stormy. The record is replete with evidence that Pat was promiscuous in her amours and that appellant accused her of a lesbian relationship with one of her girl friends.
While appellant and Pat were living in California, the Fisks visited them and persuaded Pat to return with them to Missouri. Appellant thereafter urged Pat to rejoin him in California and sent her money for plane fare, but she did not return. He then came back to St. Louis County and for a few weeks lived at the Fisk home. He moved out when Pat told him she wanted to break up their relationship. Appellant became convinced that Pat's only salvation was psychiatric treatment, and he urged the Fisks to afford her such treatment but they did not.
On one occasion thereafter, appellant and a friend of his came to an apartment where Pat was visiting a girl friend and forced Pat to leave with him and go to a motel. He later let her go, but during the course of their conversation on that occasion, he told Pat that if she went to the police or had her parents press charges, he would kill her, her parents and her girl friend.
About a week later, on the morning of July 15, 1967, appellant came to the Fisk house. He was armed and ostensibly came for the purpose of conveying Patricia to a psychiatrist, by force, if necessary. Mr. Fisk went to the door when appellant knocked. Pat heard appellant's voice when he asked to see her. Mr. Fisk said, "No, you're not going to see Pat" and told him that he wasn't welcome there. Appellant said again he wanted to see Pat, after which Pat heard a scuffling in the hall as though they were fighting. She then heard her stepfather say, "Oh, no!", followed by a shot.
Mrs. Fisk immediately ran to the telephone. Pat called to her mother to come with her and then ran from the house to a neighbor's garage. As she was running, she heard two more shots.
The police were called to the scene. When they arrived, they found Mr. Fisk lying in the front hall of the Fisk home. A trail of blood led to a neighbor's house where Mrs. Fisk was found in the hallway. Both had been shot, and both were dead. Appellant was not located at that time but was apprehended later in Canada.
After the shooting incident, Pat authorized police officers to intercept and read her mail. They obtained four letters written to her by appellant. Each contained admissions relative to the shooting and were received in evidence. In addition, two agents of the Federal Bureau of Investigation interrogated appellant while he was in custody in a jail in Toronto, Canada and they testified as to statements which he made to them.
Appellant called as witnesses Dr. Robert Thomas, a clinical psychologist, and Dr. Nathan Blackman, a psychiatrist. They testified that the appellant had a severe depression which was characterized as a mental disease or defect; that, as a result, he was unable to premeditate; and that in their opinion there was no premeditation in what appellant did. It is appellant's position that this evidence was admissible to show that he did not have a state of mind which is an element of the offense of murder in the second degree, namely, premeditation, and that such evidence would have justified the jury in finding that appellant intentionally killed Mrs. Fisk but that the killing was not premeditated.
Appellant makes no contention that the evidence was insufficient to support a conviction of murder in the second degree. He asserts, however, that the evidence also entitled him to an instruction on manslaughter and that the refusal thereof by the trial court constituted reversible error.
The General Assembly has defined by statute what constitutes the offenses of murder in the first degree (§ 559.010), murder in the second degree (§ 559.020) and manslaughter (§ 559.070). The latter section defines manslaughter thus: "Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter."
This court has recognized that under the foregoing statutes, the elements in murder in the first degree are deliberation, premeditation and malice; that the elements of murder in the second degree are premeditation and malice but without deliberation; and that manslaughter is any other killing (not justifiable or excusable), which necessarily is without premeditation or malice. State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971); State v. Williams, 442 S.W.2d 61 (Mo. banc 1968).
It is the duty of a trial court to instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in arriving at a verdict. Sec. 546.070(4); Rule 26.02, V.A.M.R. If, as a matter of law, the court can declare that there is an entire absence of evidence upon which to support a verdict of guilty of a particular offense (whether it be murder in the first degree, murder in the second degree, or manslaughter), the court should not instruct thereon. Conversely, it is the duty of the court to instruct on such of these offenses as the evidence will support. State v. Ayers, supra. Hence, whether appellant was entitled to an instruction on manslaughter depends on whether from the evidence introduced the jury could have found that he unjustifiably and inexcusably killed deceased without premeditation or malice.
Historically, Missouri has rejected the so-called "partial responsibility" doctrine. That doctrine permits introduction of evidence of mental disease or defect to prove the absence of particular mental elements of a crime as a basis for convicting defendant of a lesser degree of the crime (instead of being acquitted on the basis of mental disease or defect). Typical of the cases rejecting the "partial responsibility" doctrine was State v. Holloway, 156 Mo. 222, 56 S.W. 734 (1900). In that case defendant charged with murder in the first degree, pleaded insanity as a defense. He asked for an instruction that defendant might be of sufficient mind to intend the murder of the deceased but not of such understanding and control of his mind and mental powers as to coolly deliberate said murder and that, if the jury so found, it should convict the defendant of murder in the second degree. This instruction was refused and that action was affirmed on appeal, the court saying, 56 S.W. l.c. 737:
In 1963 Missouri adopted an entirely new act dealing with criminal proceedings involving mental illness (Chapter 552). In § 552.030(1) thereof, the statute provided that "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law." Other subsections specified how and when the defense should be asserted, the notice to be given, the procedure to be followed and what would occur if the jury by its verdict should acquit defendant on the ground of mental disease or defect excluding responsibility.
After having provided in the above section for the defense of not guilty by reason of mental disease or defect excluding responsibility, the statute then provided in § 552.030(3) as follows:
It is appellant's position (a) that under the specific provisions of § 552.030(3)(1) the evidence of Doctors Thomas and Blackman was admissible to show that appellant was not capable of and did not premeditate the killing of Mrs. Fisk and (b) that, on the basis thereof, the jury could have found the defendant guilty of manslaughter rather than being limited to the choices of guilty of murder in the first degree, guilty of murder in the second degree, or not guilty by reason of mental disease or defect.
The state argues in response "that § 552.030(3)(1) does not mean that evidence of mental disease or defect can be used to negate some but not all of the state of mind elements of homicide. Respondent believes that the legislature intended that this statute mean only that the negation of one state of mind element of the offense charged would entitle the defendant to an acquittal by reason of mental disease or defect excluding responsibility."
Whether appellant was entitled to an instruction on manslaughter depends upon what interpretation is to be placed upon § 552.030(3)(1). In construing that section, it is important to consider its source which is § 4.02(1) of the Model Penal Code (ALI) (1962).
It is reasonable to conclude that when the legislature decided in 1963 to incorporate § 4.02(1) of the Model Code into the new Missouri Act, it did so with the intention of adopting the accompanying interpretation thereof by the drafters of that provision. The rule is well established that when the legislature enacts into law a statute which they take from the laws of another state, they adopt the interpretation placed thereon by the courts of that state prior to the time the statute is enacted by Missouri. This rule was expressed in General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 447 (1932) as follows:
The foregoing principle is just as logical and applicable when the new statute enacted is a model or uniform code rather than an existing statute taken from some other state except that the interpretation adopted is the commentary or explanation of the drafters rather than that of a court of the state from which the law is taken. Although this precise application of the principle has not been made heretofore in this state, the courts of other states have so held. For example, in People's Savings & Trust Co. v. Munsert, 212 Wis. 449, 249 N.W. 527, 531 (1933), the court said:
See also Tinney v. Crosby, 112 Vt. 95, 22 A.2d 145, 147 (1941).
Adopting and applying the principle stated in People's Savings v. Munsert, we hold that when the General Assembly enacted § 4.02(1) of the Model Penal Code as § 552.030(3)(1) of the new Missouri Act, it adopted the interpretation placed thereon in the commentary by the drafters of the model act. That commentary makes it clear that the section was intended to make admissible evidence to prove the absence (due to mental disease or defect) of some element or elements of the offense charged and to accord to that evidence the same effect as other evidence (not based on mental disease or defect) which might be offered for that purpose. Applied to this case, that conclusion means that the jury was entitled to consider evidence on the absence of premeditation due to mental disease or defect the same as it would have been entitled, for example, to consider evidence to show absence of premeditation on the basis of sudden provocation.
It should be pointed out that while the rule embodied in § 552.030(3)(1) as we interpret it is sometimes referred to as the doctrine of partial responsibility, the fact is that such a descriptive term is misleading and does not correctly state the purpose and effect of the rule. This was pointed out in State v. Padilla, 66 N.M. 289, 347 P.2d 312, 314 (1959), as follows:
A similar view is expressed in an annotation in 22 A.L.R.3d 1228 entitled "Comment Note.—Mental or Emotional Condition as Diminishing Responsibility for Crime" where it is stated l.c. 1238:
In urging that the court interpret § 552.030(3) (1) in a manner contrary to the views hereinbefore expressed, the state cites and relies particularly on the cases of State v. Holloway, supra; State v. Garrett, 391 S.W.2d 235 (Mo.1965); State v. Glenn, 429 S.W.2d 225 (Mo. Banc 1968); and State v. Sturdivan, 497 S.W.2d 139 (Mo.1973).
Holloway was decided in 1900, long before the enactment of § 552.030(3)(1). It does not purport to be and is not an interpretation of the meaning and effect of that statutory provision.
Garrett was a case in which the defendant was charged and convicted of first degree robbery committed with a dangerous and deadly weapon. He pleaded not guilty by reason of mental disease or defect. At the trial, defendant requested and the trial court refused an instruction which would have required the jury to find the defendant not guilty if at the time of the offense he "had a mental disease or defect sufficient to deprive him of ability to act willingly or feloniously." This court in affirming the conviction pointed out that the instruction was offered with a view of having the jury to return a verdict of not guilty without a finding of mental disease or defect excluding responsibility. In other words, as the court pointed out, 391 S. W.2d l.c. 242:
Defendant in Garrett did not seek an instruction submitting guilt or innocence of a lesser degree of the crime based on evidence of the absence of some element of
That statement was unnecessary to the decision and is dictum. In view of the result we reach herein, it is not a valid observation with respect to the meaning and effect of § 552.030(3)(1).
In State v. Glenn, supra, a felony murder case arising out of the death of a police officer in connection with a robbery, this court held that the trial court properly refused to instruct on murder in the second degree. This decision was based on the proposition that § 559.010, supplies the elements of deliberation, premeditation and malice if the homicide was committed in the commission of one of the specified felonies and that only an instruction on murder in the first degree is appropriate. Defendant sought to avoid the effect of that rule by relying on § 552.030(3)(1). In disposing of that contention, the court said, 429 S.W.2d l.c. 234:
It is our view that the instant case is not analogous to Glenn. In any event, that case does not cause us to reach a result herein contrary to the views previously expressed in this opinion. Glenn should not be construed as being authority for the proposition that a defendant is not entitled to an instruction on a lesser degree of a crime when there is evidence that by reason of mental disease or defect a state of mind which is an element of a higher degree of the offense is missing.
In State v. Sturdivan, supra, defendant was charged with first degree murder. He pleaded not guilty and not guilty by reason of mental disease or defect. The court instructed on first degree murder only and refused to instruct on murder in the second
The result reached in Sturdivan appears to be correct, not because a defendant cannot be entitled to an instruction on a lesser degree of the crime based on evidence of the absence of some element of the offense due to mental disease or defect, but because there was no evidence to show mental disease or defect which would entitle the defendant to such an instruction. However, what the court says with respect to the degree of homicide not being reduced by reason of mental disease or defect showing the absence of some element of the offense is not in accord with § 552.030(3) (1) as we interpret it and is disapproved.
Having concluded that by the adoption of § 552.030(3)(1) the legislature adopted a rule of evidence making admissible evidence of the absence of premeditation in the case of a defendant charged with murder, it follows that where, as here, sufficient evidence thereof was introduced to permit the jury to conclude that defendant was not capable of premeditation, an instruction on manslaughter was mandatory and refusal of such an instruction was reversible error.
Appellant has asserted numerous other grounds for reversal which we need not consider. Several assignments relate to instructions given or refused. We do not consider them in view of the fact that since the trial of this case, pattern criminal instructions, denominated MAI-CR, have been adopted. On retrial, instructions therefrom should be used. Other assignments relate to alleged prejudicial final argument to the jury on behalf of the state and to an objection to a hypothetical question asked of Dr. Thomas. Since these may not recur on retrial, we do not consider and rule on them.
There is one question likely to arise on retrial which we should decide. That relates to admissibility of testimony by Federal Bureau of Investigation agents as to statements made to them by appellant when they interrogated him. Appellant's specific assignment with reference thereto is that the evidence was inadmissible because the agents did not inform him of his right to the presence of an attorney prior to and during any interrogation and because he did not waive his right to remain silent or to an attorney.
The trial court, out of the presence of the jury, held an evidentiary hearing on appellant's motion to suppress his statement to the FBI agents. At said hearing, an FBI agent testified that prior to questioning, appellant was told that he did not have to talk to them if he did not so desire; that anything he said could be used against him in a court of law; that he was entitled to an attorney if he desired one; and that if he was unable to obtain an attorney by reason of finances or otherwise, arrangements would be made to have one assigned to him. In addition to that verbal warning, the defendant also was shown a standard Miranda card which, among other things, contained the following with respect to this particular contention:
According to the agent, appellant looked at this card and said that he understood his rights. He then stated that he would not sign the card or a waiver and wouldn't sign anything but he would talk about things. The appellant also testified, and he disputed portions of the testimony of the agents.
Upon the evidence which it heard, the trial court overruled the motion to suppress, holding that statements made by appellant were given after he had been advised of his rights and after he indicated that he understood them. The court held that appellant waived his rights by voluntarily making statements to the FBI agents.
We hold that there was ample evidence to support the findings and conclusions of the trial court and that the hearings and findings thereon complied with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Consequently, we hold that admission of the testimony of the FBI agents with reference to appellant's statements to them was not erroneous.
Reversed and remanded.
DONNELLY, C. J., and SEILER, MORGAN, HOLMAN and BARDGETT, JJ., concur.
HENLEY, J. dissents in separate dissenting opinion filed.
HENLEY, Judge (dissenting).
I respectfully dissent because I cannot agree that there was any substantial evidence to support the giving of a manslaughter instruction.
The principal opinion holds that a manslaughter instruction should have been given because there was evidence from two doctors that defendant was unable to premeditate because of "severe depression" and in their opinion "there was no premeditation in what appellant did." I agree with the statement in the principal opinion that manslaughter consists of an intentional killing without premeditation or malice, but that broad statement presupposes a substantial reason producing the absence of premeditation. It has been said that voluntary manslaughter is the intentional killing of a human being in a heat of passion on a reasonable provocation, because these mitigating factors (heat of passion reasonably provoked) eliminate the element of premeditation and reduce the offense from murder to manslaughter. But the court has never recognized, so far as I can determine, that mere depression is capable of producing the same effect as "anger, fear or agitation suddenly provoked by the unexpected acts or conduct of the victim." See MAI-CR