(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.
In the separate opinions filed herein by Seiler, C. J. and Bardgett, J., the view is expressed that the conviction in this court tried case should be affirmed for the reason that the evidence supports a conviction of common law felony murder which is murder in the second degree. I agree and concur in what they say with reference thereto. The evidence is sufficient to find that defendant planned with others to steal items from the dwelling house of James Main and that such intention was consummated. The fact that what occurred could have been found to constitute robbery rather than simply larceny from a dwelling house does not prevent that conclusion because larceny from the person (in this case occurring in Main’s dwelling house) is an included offense of robbery, and conviction therefor may be had under a charge of robbery. State v. Gardner, 356 Mo. 1015, 204 S.W.2d 716 (1947); 67 Am.Jur.2d, Robbery, § 7, p. 34. In this case wherein defendant was charged in common form with murder in the first degree, proof of a robbery and a homicide in connection therewith was admissible. Such proof, clearly present, supports a conviction of murder in the second degree based on the evidence sufficient to show larceny from a dwelling. I would affirm the conviction on that basis.
I also concur in what Seiler, C. J., says in concluding that this conviction cannot be affirmed on the basis of Rule 26.06 V.A. M.R. or § 556.220 RSMo 1969. In addition to what he says on the subject, I would point out that this court has held on numerous occasions that when the evidence shows that a homicide was committed in the perpetration of one of the felonies enumerated in the first degree felony murder statute and the court submitted the case on a first degree felony murder instruction, the court did not commit error in refusing defendant’s request that a second degree murder instruction be given. State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 343 (1956); State v. Bradley, 234 S.W.2d 556, 563 (Mo.1950). Yet, under the holding of the principal opinion, if the trial court in those cases had given a second degree murder instruction over defendant’s objection he would not be permitted to complain, and the giving of the instruction, held to be improper and not justified under the rulings in Burnett, Bradley and similar cases, would not be reversible error. Thus, under the principal opinion, in a situation wherein the court concludes that the evidence does not justify or permit a second degree murder instruc*890tion, it is not error to refuse the same if the defendant requests it, but at the same time, it is not error to give the instruction even if defendant objects to it. I cannot concur in such a “heads I win, tails you lose” result. I do not believe it can be justified either on the basis of Rule 26.06 or § 556.220 RSMo 1969. If the rule and statute do authorize that kind of inconsistent result, they would, at least to that extent, be unconstitutional.
In addition, I should point out that I consider the principal opinion to be in conflict with the opinion of this court in State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972). The principal opinion recognizes that it would appear to be in conflict with the result in Jasper, but concludes that a conflict actually does not exist, that conclusion being based on its premise that the court in Jasper did not consider Rule 26.06 or § 556.-220. I cannot agree with that premise. Our court files disclose that applicability of the rule and statute in question were present in Jasper. The State urged affirmance of the conviction therein on the basis of Rule 26.06 and § 556.220. Defendant opposed such result, arguing that the rule and statute did not authorize submission of lesser offenses when there was no evidence to support such a submission. The divisional opinion discussed this issue and stated that the court would agree that a judgment of conviction without support in the evidence would be unlawful but that the principle was inapplicable because there was evidence to support a conviction of second degree felony murder.
If the court en banc had accepted the State’s contention that Rule 26.06 and § 556.220 authorized affirmance on the basis that the defendant could have been convicted of murder in the first degree and hence could not complain, even in the absence of evidence to support the conviction, it would have affirmed the conviction instead of reversing and remanding for new trial. The court’s opinion did not discuss Rule 26.06 or § 556.220, but necessarily the court rejected their applicability when it reversed and remanded for new trial.