#### STATE of Missouri, Respondent, v. David Sanders MURRAY, Appellant.

No. 44258.

Supreme Court of Missouri, Division No. 2.

July 11, 1955.

*810J. K. Owens, Kansas City, for appellant.

John M,'Dalton, Atty. Gen.,- Grover C. Huston, Asst. Atty. Gen., for respondent.

EAGER, Judge.’"

Defendant was charged with first degree robbery in Jackson County; by amended inforfnation a prior conviction of felonious assault in the State of Kansas was added to the charge in order to support a conviction and punishment under the so-called Habitual Criminal Act, Sections 556.280 and 556.290 RSMo 1949, V.A.M.S.' At the trial defendant' was convicted of first degree robbery and•. his' punishment assessed at nine years in the penitentiary. The jury did not impose the life sentence which would have been mandatory under the above act, if found applicable. '

Respondent has filed a motion to affirm, alleging defective notice of appeal, late-filing of the transcript, and late and defective motion for new trial. The notice' of appeal filed in this court is sufficient, stating that the appeal is taken from the “Judgment” (which word respondent asserts was omitted); -'this court, by its order of November 8, 1954, permitted the transcript to be filed Out’ of time; • the motion for new trial was filed seventeen days after the,verdict, but the clerk, of this court has been furnished with a duly certified copy of an entry of the'trial court (supplementing the transcript) showing the allowance of twenty days for filing the motion. The time of filing such motions under Criminal Rule 27.20 (which has replaced section 547.030 RSMo 1949, V.A.M.S.) is mandatory. See: State v. Clark, Mo., 277 S.W.2d 593; State v. Brown, 339 Mo. 1014, 98 S.W.2d 777; State v. Loyd, Mo., 233 S.W.2d 658; State v. Mosley, Mo., 119 S.W.2d 297; State v. Porter, Mo., 81 S.W.2d 316; State v. Schmitz, Mo., 46 S.W.2d 539; State v. Villinger, Mo., 237 S.W.2d 132. We now re-assert this holding, but the present motion was filed in time. The paragraphs of the motion are separate (as required), but not numbered; technically, this is a violation of the above rule, but, with,a notation here of-the-defect, we prefer to consider, the motion.- Respondent’s motion to affirm is overruled. No brief has been filed here for the defendaht-appellánt, but we shall proceed to consider those assignments of the motion for new trial which sufficiently allege “in detail and with particularity * ** **fhe specific grounds or causes” assigned Rule 27.20.

We need not state the facts in great detail ; in substance the evidence showed: That defendant and another on the evening of March 9, 1953, entered Smith’s Pharmacy at 35th and Indiana in. Kansas City, Missouri; that defendant proceeded to the rear, calling for the druggist; one Merle Ripps (who was then in' charge of the store) came out from the prescription room, whereupon -defendant immediately- produced a .45 Colt automatic pistol, pulled back the slide, and said: “Let’s see you fill this prescriptionthereupon, with' the pistol in his hand'at all times (and pointed at Ripps most df the time), defendant went to the rear with Ripps, looked in the safe, forced Ripps to open the .narcotics drawer, scooped up a relatively large quantity of narcotics "and put - them ' iñ ' his pocket; defendant instructed one dr more clerks'to *811continue with their business, but told.'on'e girl employee to empty the main cash register and bring him the money, which she did, and he put the bills in his pocket or pockets and took the silver in a paper bag.' During this time defendant’s associate (also armed) stayed near the front of the store and took the money from - the other cash registers. One or more customers slipped out and caused the police to be. called; they soon arrived and.entered (front and back), and when defendant saw an officer approaching him .(at the rear) with a shotgun, he laid down his ‘pistol and surrendered. - The police had. both men pull their coats or jackets over their heads, and some of the money, as well as some of the narcotics, fell- from .defendant’s pockets and, was scattered over, the floor; in searching defendant for ■ another weapon- .the .police found a big ball of bills in his .right trousers pocket, and change in an upper pocket. Although the search was stated to be primarily for a weapon, they took this money from him and left, it on the counter for the druggist, along- with the money picked up from the, floor. Both men were taken to the police station where a substantial quantity of narcotics, (probably fifteen to eighteen bottlqs). and a small amount of money were .found in defendant’s pockets; he was wearing a shoulder holster for a pistol under his jacket. Defendant’s car,, with the motor running, was found about half a block from the drugstore. Defendant was positively identified by several eyewitnesses. An officer testified that the automatic pistol of defendant .was found at the time. to. be loaded, and “ready to go,” with, a shell in the firing chamber. No evidence was offered on behalf of-defendant.

Appellant complains of three separate acts (or statements) of the prosecutor: (1) In telling the jury panel that “they must give the defendant life imprisonment;” .(2) in stating in. the argument that defendant “had not presented any evidence on his behalf, thereby directing the jury’s attention” to defendant’s failure to testify; and, (3) that the prosecutor (in.final argument) . “waved the gun and shouted in regard to the same,” for the purpose of prejudice. As to (1)., we find , no such statement-in the transcript and, of course, the allegation in the ' motion is not self-proving. State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774; State v. Anderson, Mo., 254 S.W.2d 638. The assignment in (2) above refers to the following statement of the prosecutor: “Now, there hasn’t been one bit of evidence here- to' refute what any of thes.e people said.” We note again that Wo *evidence*was-produced on behalf- of the defendant. ' Criminal Rule 26.08 and Section 546.270 RSMo-1949, V.A.M.S. provide (pursuant to constitutional mandate: against self-incrimination) that the accused’s--failure-to'.-testify shall not “be referred to by- any attorney in the case * * But it is only the failure of the accused to testify which may not be commented Upon. As pointed out in State v. Hayzlett, Mo., 265 S.W.2d 321, 324, the key words , in the ■ statute are *“accused"*and *“testify."*In order to work prejudice it must be demonstrated that the .attention of the jury was directed to the fact that the *accused*did not testify. . In that,case the prosecutor said:.“‘They offered no evidence at all.’ ” Counsel insisted upon a mistrial, as here, although, the court offered to caution the jury. It was held there that the motion was properly overruled. So. here, the statement made-, was patently applicable;to the lack or absence of all evidence and of all possible . witnesses; many people had been at the scene; we do not see,that the jury’s attention was directed specifically to the. failure of accused to testify, and we cannot hold that the possibility .that the jury may have so construed it constituted reversible error. We overrule the assignment. See also: State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660. The last complaint (3) in this group arises from the following occurrences during the final argument of the prosecutor;

> “And, he wants to know who is' vicious. He would' have you believe1 that this defendant had to go in there with this pistol and—

> “Mr. Owens: Now, just a moment.-

> “Mr. Kennett: . (Continuing) — and! shoot somebody,—

> *812“Mr. Owens: Just a moment.'

> “Mr. Kennett: (Continuing)r^before he is being vicious. . * * *

> “Thereupon, out of the 'hearing of the jury the following proceedings were had:

> “Mr.- Owens: We want the record to show that the Prosecuting Attorney grabbed up this gun, run before the jury with it, shaking it in the face of the jury for the purpose of inflaming the passion of the jury, and for that purpose alone, and I will ask the Court to declare a mistrial for that reason.

> “The Court: Overruled.”

The argument of defendant’s counsel is not shown in the transcript and we have no way of knowing to what extent the present statement' was retaliatory. Such fact is often important State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582; State v. Lorts, Mo., 269 S.W.2d 88. Much discretion is permitted to the trial court in regulating argument, and we cannot say that the discretion was abused here. And we noté again thát counsel only asked for a mistrial, a radical remedy, and for- no cautionary instruction. This assignment is overruled.

In another assignment complaint is made because the court failed to instruct on “an attempted crime.” It is our firm conviction that the evidence 'here made out a case of *completed robbery*or nothing. There was no' “attempt,” as such. When defendant got possession of the money and narcotics under the circumstances outlined and put them in his pockets, the crime of robbery was complete (assuming, of course, that the jury‘believed the evidence).' The completed crime is wholly inconsistent with an attempt. Section 556.160 RSMo 1949, ,V.A.M.S. This assignment is overruled. Actually, the assignment is insufficient to raise specific questions, but if counsel had in. mind: the failure, to. carry *all*of the money and narcotics out of the store, the contention is finfounded, for it seems that -if one’ in the course of a robbéry or larceny (and with- the other elements present) gains control of the -property *even, for an instant,*the crime .is complete. See: '46.Am.Jur., p. 141, § 6 (Robbery), and 32 Am.Jur., pp. 902, 903, § 17 (Larceny).

Complaint is next made that the court failed 'to instruct on all degrees' of the crime. Clearly, if the evidence was believed, all elements of first degree robbery, Section 560.120, RSMo 1949, V.A.M.S., were shown, including a taking from the person, or in his presence, against the person’s will, and by violence to his person or by putting him in fear of immediate injury. Under the circumstances there would have been no justification for instructing the jury on any other degree of robbery. In this case the result should necessarily have been a conviction of first degree robbery or an acquittal.

We next consider the very general assignment that the court erred in admitting in- evidence the certified copy of defendant’s photograph and fingerprints from the Kansas State Penitentiary (with no reasons assigned in the motion), and the copy of his former “convictions” (because same was “not proper and-same was not made according to law”). The first of these assignments may be disregarded as wholly in violation of Criminal Rule 27.20. As to the latter, the-objections made to the offer at the- trial were that it did hot’ appear from the documents that defendant .was previously sentenced to th'e penitentiary and that the sentence Wás not such as was covered by the Missouri Habitual Criminal Act, —also, that the offer'was prejudicial. It is very doubtful whether the present assignment preserves the objections as made. However, it is probably a complete answer to this *contention to point out*that the jury did not assess punishment under the Habitual Criminal Act, Section 556.280 RSMo 1949, V.A.M.S., in- which event life imprisonment would have been mandatory under the statute and the instructions; the entire offer and the reception of this evidence might thus-be held (on that ground) *813not to have beén prejudicial. State v. Held, 347 Mo. 508, 148 S.W.2d 508; State v. Peterson, Mo., 130 S.W.2d 505. But, we note further that these documents showed that the defendant pleaded guilty in the State of Kansas to “felonious assault” and was sentenced to the Kansas State Reformatory, from which he was transferred by order of the Kansas Board of Administra-' tion to the Kansas State1 Penitentiary; he served a total of more than six years- and' received a “citizenship pardon.”- íhe record fairly shows a' conviction for an offense which, if' committed in 'this state, would have been “punishable” by imprisonment in the penitentiary.- See Section 556.290 RSMo 1949, V.A.M.S. and Section 559.190, RSMo 1949, V.A.M.S., the latter of which prescribes punishment for assaults other than assaults with intent to kill.) The prior offense need only be one which *might*be so punishable even- though the penalties may range downward to a jail term or a fine, State v. Bohannon, 361 Mo, 380, 234 S.W.2d 793. The prior offense here was-one fairly within the .contemplation. of Sections 556.280 and 556.290, RSMo 1949, V.A.M.S., and certainly, if the prior offense is properly charged in the information, the state may offer evidence of it, else the entire theory of the statute would séem to be wholly ineffectual. See: State v. Manecke, 139 Mo. 545, 41 S.W. 223; State v. Dalton, Mo., 23 S.W.2d 1; State v. Long, 324 Mo. 205, 22 S.W.2d 809; State v. London, Mo., 84 S.W.2d 915; State v. Tyler, 349 Mo, 167, 159 S.W.2d 777; State v. Hagerman, Mo., 244 S.W.2d 49. Even.if the- evidence be-considered as-prejudicial-in fact to defendant on the robbery charge, it is nevera theless admissible, and it cannot be -con-r sidered as legally prejudicial in-the case as a whole. The assignments concerning the admission of these records are overruled,

Appellant has assigned as error, the failure to sustain his motion for acquittal and asserts that the state failed to prove sufficient facts. Our previous r.eview of the evidence sufficiently covers this assignment and it is overruled. .A further assignment is'that all thé' évideíicé in ré-gárd to the taking of the money should have been stricken bn motion because the money itself was not introduced in evidence; we knoy of no such.requirement, and the taking of the money here was very explicitly described in the evidence. The circumstances probably precluded a-definite production and identification of the money at the time of trial. The last assignment to be considered is that the-court erred in admitting “the' bottle alleged to have been stolen,” for lack of proper identification. The record certainly shows an identification of the bottles of narcotics by an employee of the store; this was in any event sufficient to make a jury issue, and the weight of the evidence was' for the jury. The conviction did not depend solely on this evidence in any event. Moreover, there was no objection made at the trial on the ground now assigned. State v. Gaddy, Mo., 261 S.W.2d 65; State v. Hinojosa, Mo., 242 S.W.2d 1.

The assignments of the motion for new trial claiming error in instructions will not be considered. They are: That one instruction did not fully state the law and was misleading; that five others were “improper” and .were conclusions of law. These-assignments wholly fail to bring-any question here for review under Criminal Rule 27.20. See: State v. Kelly; Mo., 107 S.W.2d 19; State v. Jordan, Mo.; 235 S.W.2d 379; State v. Frazier, 339 Mo. 966, 98 S.W.2d 707; State v. Jonas, Mo., 260 S.W.2d 3; State v. Graves, 352 Mo. 1102, 182 S.W.2d 46; State v. Finn, Mo., 243 S.W.2d 67; State v. Lamb, Mo.; 239 S.W.2d 496. The assignment that the vérdict Was caused by the “passion-and prejudice of the jury chused by‘the conduct of the prosecuting attorney” has already béen ruled on- in considering the conduct specifically complained of; otherwise, this assignment ■ raises ho question here. State v. Hagerman, Mo., 244 S.W.2d 49; State v. Bell, 359 Mo. 785, 223 S.W.2d 469.

The amended information sufficiently charged the crime of first degree robbery; the' verdict, judgment and 'sentence are *814sufficient and allocution.was duly accorded. In fact none of these were attacked in the motion for new trial.

We find no reversible error'and the judgment is affirmed. '

.All concur. .