Opinion
No. 58067.
October 14, 1974.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, KEITH P. BONDURANT, J.
John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.
Hill, McMullin Wilson, Kansas City, for appellant.
Appellant has appealed from the judgment entered pursuant to jury verdict wherein he was found guilty of murder in the first degree of Diane Elizabeth Cole and sentenced to imprisonment for life. Appellate jurisdiction is in this court by reason of the order of this court dated April 9, 1973.
Appellant's only point on this appeal is that "The Court erred in not instructing the jury that appellant could be convicted of murder in the second degree, even though said instruction was not requested."
The transcript shows that after the conclusion of all evidence, a conference was held outside of the presence and hearing of the jury concerning the instructions. The court announced that it intended to instruct the jury on murder in the first degree. No request was made by appellant for an instruction on murder in the second degree, and none was given. In appellant's motion for new trial there is no assignment of error which directly or by inference presents the contention that it was error for the court to fail to instruct on murder in the second degree.
If the evidence justified a conviction of murder in the second degree, the court was required to instruct the jury as to that offense whether or not requested to do so. Rule 26.02(6), V.A.M.R.; State v. Johnson, 505 S.W.2d 94 (Mo. 1974); State v. Bell, 442 S.W.2d 535 (Mo. 1969). However, appellant made no complaint whatever in his motion for new trial concerning the failure to give an instruction on murder in the second degree. It is in this court that this contention is presented for the first time. Therefore, the only point set forth in appellant's brief is not preserved for appellate review. State v. Nebbitts, 498 S.W.2d 762 (Mo. 1973); State v. Turner, 452 S.W.2d 185 (Mo. 1970); State v. Schleicher, 442 S.W.2d 19 (Mo. 1969).
The judgment is affirmed.
HOUSER, C., concurs.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All of the Judges concur.