(dissenting).
I respectfully dissent for the reason that the state improperly and prejudicially argued for punishment in excess of that authorized by statute for murder in the second degree and because, as a result, the jury assessed, and the trial judge imposed, a term which, in my judgment, exceeds the maximum permitted by statute.
As noted in the principal opinion, the jury found defendant guilty of murder in the second degree and fixed his punishment at imprisonment for 200 years. This verdict followed argument by counsel for the state wherein he urged conviction of murder in the first degree and imposition of the death penalty (then permissible), but went on to say that if they were not going to assess a death sentence, they should convict of second degree murder — not first— because there is no limit on punishment for second degree murder and d'efendant could be sentenced to 150 years, 250 years, or a 1000 years.
The principal opinion holds that the Missouri legislature has not established any upper limit for the term of imprisonment for second degree murder, and that the sentence of 200 years was permissible. This conclusion, as the principal opinion shows, is based on an interpretation of the provisions of §§ 559.030 and 546.490.1 Section 559.030 provides that one convicted of murder in the second degree shall be punished by imprisonment for not less than ten years, but provides no maximum therefor. In such a situation, § 546.490 becomes applicable. It states that when any “offender is declared by law punishable * * * by imprisonment in the penitentiary for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed * * *.”
It is obvious that the principal opinion considers that the clause “or for any number of years not less than such as are prescribed” is entirely independent of and without any relationship to the earlier provision in § 546.490 which provides at the outset for imprisonment during one’s natural life. It is on this basis that the opinion concludes that the language about imprisonment for any number of years is open ended.
In the first place, this conclusion is a non sequitur in view of what the section undertakes to accomplish. It starts out by saying that it is applicable only where a statute establishes the minimum number of years imprisonment which may be imposed but provides nothing about a maximum. The inescapable conclusion, I submit, is that the purpose of § 546.490 was to establish a maximum punishment, thereby supplying that which the original sections did not do.
In contrast, the state contends for, and the principal opinion adopts, an interpreta*24tion of § 546.490 which still establishes no maximum sentence for the offenses to which it is applicable. Instead, according to that interpretation, § 546.490 prepetu-ates the very deficiency which it was intended to correct. According to the state and the principal opinion, there still is no maximum punishment established by § 546.-490 for murder in the second degree (or for any other offense to which it is applicable), and the jury, following conviction, may assess a term of 200, 500, 1000, or even 5000 years imprisonment. The statute, according to that interpretation, now specifically authorizes a sentence of life imprisonment but it is not a maximum, and § 546.490, like § 559.030, establishes a minimum but no maximum punishment. I repeat that this interpretation results in § 546.490 becoming a complete non sequitur when its expressed purpose is to supply a deficiency which exists in those statutes providing 'a minimum but no maximum period of incarceration in the penitentiary.2
Secondly, the conclusion reached in the principal opinion as to the effect of § 546.490 is in conflict, it seems to me, with that 'reached by this court in State v. Robinson, 177 S.W.2d 499 (Mo.1944), in which Judge Tipton, speaking for the court, held that the range of punishment for murder in the second degree “is from ten years to life.” The applicable statutes then existing were the same as at present.
In the third place, such interpretation ascribes to the general assembly an intention to provide for imprisonment for more than the single mortal life which an individual has. In other words, it interprets the statutes as authorizing a sentence which is impossible of fulfillment. In addition, it results in an anomalous situation wherein greater punishment is established for second degree murder than for first degree murder (life imprisonment), even though second degree murder is a lesser included offense of first degree murder.
In contrast, interpreting § 546.490 as providing for a maximum of life imprisonment results in a perfectly possible and understandable range of punishment. Under that interpretation, one convicted of second degree murder may be sentenced to a minimum of ten years or a term for additional years ranging up to a maximum of life imprisonment. Such interpretation recognizes that the legislature did not intend to attempt to imprison one for more than his single mortal life. It results in a workable statute. In my judgment, this is the interpretation which we are obligated to adopt.
One alternative disposition in this case would be to reverse and remand the case for new trial, but, in my judgment, that is not necessary to rectify the situation. Counsel’s argument with respect to the length of punishment related not to guilt but simply to the length of the sentence imposed. There is no reason why it would be necessary to retry the case in order to establish the defendant’s guilt. The principal opinion has concluded that other matters complained of do not entitle the defendant to a new trial, and with those conclusions, I agree. The only need is to correct the sentence imposed.
The second alternative, it seems to me, is to reduce the sentence to one of life imprisonment, the maximum prescribed for murder in the second degree. This is what the defendant’s brief requests. This could be done by reversing and remanding to the trial court with directions to the court to *25resentence the defendant to the highest limit, namely, life imprisonment, pursuant to the authorization in § 546.490. In the alternative, this court by its judgment may do the same thing, as the court recognized in the cases of State v. Cuckovich, 485 S.W.2d 16 (Mo. banc 1972), and State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972), wherein it reduced sentences of death to life imprisonment after the Supreme Court of the United States ruled that the death sentence could not be imposed and that under existing statutes life imprisonment was the maximum sentence permissible. In my judgment, that is the proper course and I would affirm the conviction, reducing the sentence to life imprisonment.
. All statutory references are to RSMo 1969, Y.A.M.S.
. It should be noted that effective January 1, 1974, the verdict directing instruction in second degree murder cases mandated by Missouri Approved Instructions — Criminal (MAI-CR) provides that if the jury finds defendant guilty, it “will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than ten years nor more than life imprisonment.” MAI-CR 6.08. Other instructions with comparable language are MAI-CR 6.22, 6.32, 6.40, 6.42, 7.02, 7.60 and 7.62. These new instructions should prevent recurrence of argument such as that made in this case, as obviously it would be contrary to the court’s instruction on the range of punishment.