(concurring in result).
I concur in the affirmance of defendant’s conviction of murder in the second degree but do not agree that the conviction can be affirmed on the basis set forth in the principal opinion. I agree with the analyses of the law as set forth in the separate opinions of Seiler, C. J., and Finch, J.
This defendant was charged in common form with murder in the first degree. This charge is sufficient to support a conviction of murder in the second degree if there is evidence sufficient to support that conviction. The case was tried to the court without a jury and, therefore, there were no specific submissions of the various degrees of homicide or methods of committing murder because, obviously, there were no instructions given.
At the close of the case the court took the case under submission. The court was not requested to and, therefore, did not make specific findings of fact but rather entered what would be called a general verdict finding defendant guilty of murder in the second degree. The question therefore is: Was there evidence upon which the court could find the defendant guilty of murder in the second degree?
Felony murder in the second degree is committed when a person engages in a felony, other than those enumerated in section 559.010 (as it existed at the time of this offense) during which a homicide occurs. State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972); State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975). In Chambers the underlying felony was stealing an automobile. Sections 560.156, 560.161, subd. 2(2).
In this case the evidence was sufficient to support a finding that defendant and others intended to steal certain items from the dwelling house of James Main; that defendant intended to steal a television set, and the participants decided that two of them who were not known to Mr. Main would enter the home and blindfold Main so he would not recognize his neighbor — the defendant. They entered the home and shortly thereafter defendant joined them. They stole a radio and a sweater from Main’s home. Main was killed in the course of this theft.
Section 560.156, subd. 1(2) defines stealing and section 560.161, subd. 2(1) defines as a felony the stealing of property from a dwelling house or a person regardless of its value.
State v. Chambers, supra, holds that a homicide occurring during the perpetration of a felony of stealing constitutes murder in the second degree.
In Jasper, supra, the court held there was sufficient evidence upon which the jury could find defendant guilty of murder second degree but the case had to be remanded for a new trial because the case was not submitted to the jury with an instruction under the common-law-felony-murder rule.
In a court-tried case, such as the instant one, instructions are not used. The case was submitted to the judge on the indictment which included within its scope murder in the second degree and the evidence *889in the case. In saying the indictment included within its scope murder in the second degree, I mean that under this indictment evidence of second degree murder was admissible. Had this been a jury ease, an instruction submitting common-law-felony murder in the second degree would have been proper because the evidence supported findings that defendant engaged in the felony of stealing from a dwelling house and that a homicide was perpetrated in the course of committing that felony.
But, as indicated supra, this was not a jury case and therefore instructions were not needed nor used. Of course, a court cannot convict a person of an offense if the evidence does not support a finding that the defendant was guilty of the offense no more than could a jury do so.
So the question in this case, as I see it, is whether there was evidence upon which the defendant could be found guilty of second-degree murder. As noted supra, I believe there was sufficient evidence to support a finding that defendant engaged in the felony of stealing from a dwelling house and that Mr. Main was killed in the perpetration of that felony.
On this basis I would affirm the judgment of the circuit court and, therefore, I concur in the affirmance of that judgment.