Opinion
No. 44207.
October 20, 1981.
Bert Gates, St. Louis, for movant-appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
The state charged movant-defendant with first-degree murder, § 565.003, RSMo. 1978. The trial court directed a verdict for defendant on that charge but on its own motion instructed on second-degree murder and manslaughter. The jury found defendant guilty of second-degree murder, § 565.004, RSMo. 1978; the court sentenced him to 20 years in prison. He has now filed a Rule 27.26 motion to set aside that conviction.
The issue before the Rule 27.26 court was this: Was the second-degree murder submission proper as a lesser included offense of the charged first-degree murder? That question was squarely answered in the affirmative in State v. Wilkerson, 616 S.W.2d 829[1-3] (Mo. banc 1981). There, as here, defendant was charged with first-degree murder and found guilty of the uncharged offense of second-degree murder. Wilkerson appealed.
The Wilkerson court specifically held that under both § 556.046, RSMo. 1978, and its predecessor, § 556.230, RSMo. 1969, second-degree murder is a lesser degree of the charged offense of first-degree murder. It affirmed the judgment convicting defendant of second-degree murder. So it is here.
In granting defendant Rogers' Rule 27.26 motion the trial court relied on State v. Handley, 585 S.W.2d 458 (Mo. banc 1979). Thereafter, Handley was overruled by Wilkerson. The judgment herein setting aside defendant's conviction for second-degree murder must be and is reversed.
CRIST, P. J., and REINHARD and SNYDER, JJ., concur.