Opinion
No. WD 32698.
March 2, 1982.
APPEAL FROM THE CIRCUIT COURT, CLAY COUNTY, GLENNON E. McFARLAND, J.
Jack A. Lewis, North Kansas City, for appellant.
John Ashcroft, Atty. Gen., and Melinda A. Corbin, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P. J., and MANFORD and KENNEDY, JJ.
Defendant was convicted upon a jury trial of escape, § 575.210, RSMo 1978. He was sentenced to two years' imprisonment. He appeals to this court. His sole complaint is of the court's giving an instruction advising the jury that the court could fix the punishment if they were unable to agree upon it.
The jury after deliberating two hours informed the court they had found the defendant guilty but could not agree upon punishment. The court thereupon read to the jury an instruction patterned after MAI-CR 2d 4.50, without deviation, advising the jury that the court could fix the punishment if they could not agree upon it. The jury thereafter returned a verdict of guilty. They also agreed upon the punishment and their verdict fixed the punishment at two years' imprisonment.
It is the giving of the above instruction that defendant complains about. He says the instruction "presumes that the jury has found the defendant guilty and is unable to set punishment. By the Court giving such instruction the jury is led to believe that he is in fact guilty of the crime charged and they can ignore their duty with respect to both guilt and punishment."
There is no merit in defendant's claim, State v. Nelson, 597 S.W.2d 250 (Mo.App. 1980), and the judgment is affirmed.
All concur.