A simple robbery instruction is mandatory when the evidence would justify acquitting a defendant of aggravated robbery while convicting him of simple robbery. People v. Lundy, 188 Colo. 194, 533 P.2d 920 (1975); People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972). Here, the owner of the liquor store and his assistant testified that the appellant put them in fear of death or serious bodily injury during the robbery "by the use of . . . intimidation with a deadly weapon."

"We have consistently declined to adopt a per se rule of exclusion in rule 5 violations; instead, we have required the defendant to show that the delay was unnecessary and that some prejudice resulted from the delay. People v. Hosier, 186 Colo. 116, 525 P.2d 1161 (1974); People v. Casey, 185 Colo. 58, 521 P.2d 1250 (1974); People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (1973); People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972); People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972); Aragon v. People, 166 Colo. 172, 442 P.2d 397 (1968)."

1980); People v. Lundy, 188 Colo. 194, 533 P.2d 920 (1975); Peoplev. Reed, 180 Colo. 16, 502 P.2d 952 (1972); Lucero v. People, 161 Colo. 568, 423 P.2d 577 (1967). The trial court, therefore, properly rejected the defendant's tendered instruction on simple robbery.

See State v. Ruddle, 170 W. Va. 669, 295 S.E.2d 909 (1982). See also People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972); State v. Cameron, 216 Kan. 644, 533 P.2d 1255 (1975); People v. Loncar, 4 Mich. App. 281, 144 N.W.2d 801 (1966). The same reasoning would apply to the defense of insanity.

This is distinguished from a situation in which a defendant is either guilty of the greater offense or of no offense at all. See People v. Lundy, 188 Colo. 194, 533 P.2d 920 (1975); People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972); Vigil v. People, 158 Colo. 268, 406 P.2d 100 (1965). An instruction on a lesser offense is not required unless there is evidence to support it.

[3] We have consistently declined to adopt a per se rule of exclusion in rule 5 violations; instead, we have required the defendant to show that the delay was unnecessary and that some prejudice resulted from the delay. People v. Hosier, 186 Colo. 116, 525 P.2d 1161 (1974); People v. Casey, 185 Colo. 58, 521 P.2d 1250 (1974); People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (1973); People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972); People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972); Aragon v. People, 166 Colo. 172, 442 P.2d 397 (1968). [4,5] Here, there is no question about the delay being unnecessary. From the time of the defendant's arrest at 6:40 p.m. on December 11, 1979, to his rule 5 advisement at 9:00 a.m. on December 14, 1979, sixty-two hours elapsed without any effort by law enforcement officers to take the defendant before a county or district judge.

In People v. Ross, 179 Colo. 293, 500 P.2d 127 (1972), we said "the general rule, that an instruction on a lesser offense is required when requested, is limited to those cases where there is evidence to support such an instruction." Accord, People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972); Nora v. People, 176 Colo. 454, 491 P.2d 62 (1971); Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971); Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969). The defense theorizes that the revolver which the defendant used only contained five cartridges and the absence of a sixth mandates an instruction on simple robbery.

[6] Lastly, defendant contends that there was an unreasonable delay in taking him before the county judge, in violation of the requirements of Crim. P. 5. Before a violation of this rule may be grounds for reversal, it must be shown that the defendant was unfairly prejudiced or denied some basic constitutional rights by reason of the failure to comply with the rule. People v. Wiedemer, 180 Colo. 265, 504 P.2d 667; People v. Reed, 180 Colo. 16, 502 P.2d 952; People v. Weaver, 179 Colo. 331, 500 P.2d 980; Aragon v. People, 166 Colo. 172, 442 P.2d 397. [7] Under the record in this case, the failure to comply with Crim. P. 5 did not result in prejudice to the defendant, inasmuch as the defendant was properly advised as required by Miranda v. Arizona, supra, and thereafter chose to make the incriminating statements rather than to remain silent.

(Emphasis added.) Compare with People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972) which upheld an "aggravated" robbery conviction where there was mere intimidation plus pointing a gun. [4,5] As we have held in the past, "force or fear is the main element of the offense."

Before an accused may prevail on such a motion, he must show that he would be unfairly prejudiced or would be denied some basic rights at trial because of the Crim. P. 5(a)(1) violation. People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972) and People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972). Only a speculative argument of possible prejudice was injected into the defendant's brief.