Charged by information in two counts, Roscoe James Pittman was found guilty by a jury of robbery, first degree, and of assault with intent to kill without malice, and he has appealed from the ensuing judgment. We affirm.
A jury reasonably could find from the evidence that on October 21 1976, appellant entered the ladies’ rest room at a rest area on Interstate 55 in Cape Girardeau County and knocked Mrs. Mabel Stewart to the floor, choked her and hit her in the face with his fist. He then grabbed some car keys from Mrs. Stewart’s hand and a watch from her wrist, and attempted without sue- *279 cess to remove a ring from her finger. After making a sexually-related assault on her person he told her to remain in the rest room and that if she tried to leave he would kill her then instead of later. However, she did leave the building and told Mr. Gary S. Lively, a truck driver who had stopped at the rest area, that appellant and his companion had her car keys. After some discussion the keys were handed over to Mr. Lively. The watch was not recovered. Mr. Lively followed appellant to his automobile and obtained the license number and, in the meantime, Mrs. Stewart obtained a pistol from her automobile and gave it to Mr. Phillip Brough, another truck driver who had entered the rest area. Mr. Brough walked toward appellant and his companion with the pistol held at his side. His purpose was to prevent appellant from leaving the rest area until Mr. Lively could block the exit with his truck. When Mr. Brough was 20 to 40 yards away, appellant leveled a rifle at him and started shooting. Mr. Brough heard a bullet hit a picnic table which he had jumped behind and he started shooting back. Appellant and his companion then left the rest area by driving over a grass area to get around Mr. Lively’s truck.
Following appellant’s arrest a short distance away, he gave a written statement in which he related that while his companion was “fixing” their automobile he went to the ladies’ rest room where he saw a white woman lying on the floor. There were some car keys nearby and he “picked the keys up and helped the lady up off the floor, then"[he] walked out the door.”
Appellant’s first point is that the trial court erred in failing “to instruct the jury on the lesser offense of stealing from the person.” His theory is that if the story he related in his written statement, which was introduced in evidence by the State, is believed, the jury could have found him guilty only of stealing the car keys.
In his motion for new trial appellant assigned as error the failure of the court to instruct on robbery, second degree, but the error now asserted was not presented in the motion for new trial. The point presents nothing for appellate review.
State v. Flynn,
Prior to trial appellant filed a motion to sever the two counts. In his second point he contends that the refusal to do so constituted prejudicial error. He relies primarily on the concurring opinion of Judge Donnelly in
State v. Neal,
Rule 24.04 authorizes the joinder of charges of offenses in an information in separate counts when the offenses are “based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan.”
State v. Baker,
supra;
State v. Toney,
Rule 24.04 is patterned after Rule 8(a) of the Federal Rules of Criminal Procedure,
State v. Johnson,
Appellant next asserts that the court erred in failing to quash the jury panel because “the selection procedure used resulted in a systematic exclusion of racial and ethnic minorities.”
The transcript shows that the prospective jurors were selected by taking every sixth name from the voter registration lists. From that group 400 names were drawn, and from that group 75 names were drawn to comprise the jury panel. The court stated that the “group is selected strictly without regard to race, without regard to occupation or anything else other than the fact that they are registered to vote in Cape Girardeau County.” Appellant does not contend that the panel was otherwise selected. He asserts that he was “constitutionally entitled to a jury which has been selected from a cross section of the eligible persons in the community at large,” there were no blacks on the jury panel; and that “the exclusive use of voter registration lists prevents the panel from being representative of the county.”
Appellant was not absolutely entitled to have negroes on the jury that tried him, or even on the panel from which that jury was drawn.
State
v.
Crockett,
It has been held in numerous cases that the use of voter registration lists as the sole source of obtaining names of prospective jurors is not of itself constitutionally impermissible “unless this system results in the systematic exclusion of a ‘cognizable group or class of qualified citizens.’ ”
Camp v. United States,
The burden of showing systematic exclusion was on appellant, and the burden of going forward with evidence to the contrary was not on the State until appellant presented a prima facie case of illegal exclusion.
State v. Mooring,
Appellant’s final point is that the court erred in refusing his oral motion for acquittal because “the state’s evidence failed to show beyond a reasonable doubt that [he] was guilty of robbery in the first degree * * * as a matter of law.” We note that there is no mention in this point of the charge of assault with intent to kill. Our previous recitation of what a jury reasonably could find from the evidence clearly establishes that a submissible case was made as to both offenses. In argument under this point appellant states that it is his position that because the car keys “were returned without objection outside the restroom” the State “failed to established a taking of property with intent to permanently deprive Mrs. Stewart of the use of the items mentioned in evidence.” In
State v. Kennebrew,
The judgment is affirmed.