Chаrles W. Ayers, Jr., appellant, and Kenneth Hood were jointly indicted for an assault with malice aforethought upon Robеrt Holcomb. Section 559.180. (Statutory references are to RSMo 1949 and V.A. M.S.) A severance was granted Kenneth Hood. Apрellant was found guilty of the offense charged and sentenced to eighteen years’ imprisonment in accord with the vеrdict of the jury. He contends on this appeal that the court erred in overruling his motion for judgment of acquittal, in refusing his instruction on common assault, and in overruling an objection to the argument of the State’s attorney.
Robert Holcomb, a motorcycle officer, stopped a 1955 Chevrolet automobile which had run a stop sign on 13th Street in Kansas City, Jacksоn County, Missouri, about 4’:35 p. m. July 8, 1955. He stopped his • motorcycle behind the car and walked toward the driver’s door, intending to warn the driver. Just before he reached the door, the driver, appellant, got out, “stuck a .45 ’ in my stomach” and said: “Don’t you movе, you copper s — of-a-b—, I will kill you.” The officer grabbed hold of the gun and the two wrestled or fought “for a few minutes.” The officer was about to get the best of appellant, and appellant called to Hood, who had remained in the Chevrolet, for help. Hood thereupon came to appellant’s' aid and the two overpowered thе officer,’ appellant striking the officer several times about the head with the .45 and Hood taking the officer’s .38. The two men then dragged the officer back to the car and threw him in the back seat. Appellant got in the back seat аnd the officer started *486 fighting for the gun. Appellant jerked back, fired a shot, and struck the officer three or four more blоws on the head with the .45, saying: “You s — of-a-b—, you will be good now.” Appellant tore the officer’s badge from his shirt, took $6.00 from him, and made him lie face down on the floor of the car.
Hood drove the Chevrolet away. Appellant and Hood еxchanged pistols. Being unable to tie the officer’s hands with his belt, they decided to place him in the trunk of the car. They stopped the car and appellant told the officer: “When I tell you to get out and get in the trunk get out and don’t look at us, I • don’t want you picking my mug out.” They stopped the car after about 15 minutes and, with appellant covering him with the .38, the оfficer followed appellant’s instructions, got out, looked at the ground, and jumped into the trunk. They pulled the back sеat of the car out about an inch or two at the officer’s request so that he could breathe. After driving around for sеveral minutes, they stopped and told the officer they were leaving.
: Hearing another car drive away, the officer kicked out the back seat of the Chevrolet and freed himself. The Chevrolet had been stopped on a dead end street at Third and Paseo.
The officer received several deep cuts on his head and was in a state of shock. His face, arms, body and clothing down to his waist were bloody. He was taken to Menorah Hospital and twelve stitches were taken in sewing the cuts.
Several persons witnessed the occurrence and corroborated thе officer’s testimony. Appellant threatened some of these witnesses with his .45.
Appellant was arrested in St. Louis on July 29, 1955, by officers Bernard Durnin and John Harmon of the St. Louis Police Department. The officer’s revolver was taken from appеllant’s waistband at the time of his arrest, and he stated: “If you would give me a halfway chance you wouldn’t have taken it.”
The appellant offered no evidence in his behalf.
Section 559.180 provides: “Every person who shall, on, purpose and of malice aforethought, * * * assault or beat anothеr with a deadly weapon * * * with intent to kill, maim, ravish or rob such person, or in an attempt to commit any burglary or other felony * * * ” shall be punished by imprisonment not less than two years.
Appellant ran a stop sign. Whether he knew this or not, he, without waiting to ascertain the reason for the officer’s stopping his automobile, assaulted the officer with a deadly weapon with the declared intent to kill if the officer did not yield to his unlawful demand. (This has been considered sufficient to sustain a cоnviction under section 559.180. State v. Jordan,
Appellant directs our attention to no evidenсe justifying the giving of his instruction on common assault (section 559.-
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220). He offered no evidence in his behalf. Under the given instructions the jury сould find appellant guilty of a felonious assault with (section 559.180) or without (section 559.190) malice, or could acquit apрellant. The court properly refused appellant’s instruction because there was no evidence to support it. State v. Brown, Mo.,
Appellant also complains of the court overruling his obj ection to the State’s attоrney’s statement in argument that, under the evidence, he considered appellant and his companion “desperadoes” and “hoodlums.” We have hereinbefore set forth the evidence and consider the remark to be a reasonable deduction and legitimate comment upon the evidence; that is, a justifiable inference or conclusion drawn from the evidence and not an epithet hurled at appellant. State v. Armstead, Mo.,
Our examination of matters mentioned in Sup.Ct.Rule 28.08, 42 V.A.M.S., formerly matters of record proper, discloses no error.
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.