(dissenting).
I dissent. A conviction based upon a verdict-directing instruction unsupported *223by substantial evidence is manifestly unjust.1
The majority opinion says it treats the insufficiency contention “ex gratia,” because defendant did not specifically raise it in his motion for new trial. But the insufficiency issue is reviewable as a matter of right under the Plain Error Rule2 This is as it should be. To permit convictions based upon instructions unsupported by evidence is to disregard the presumption of innocence, to diminish the State’s burden of proof and to undermine the adversary process. Instructions lacking supporting evidence “authorize the jury to rove in reaching their verdict.”3 Courts strike down such instructions in order to prevent such roving commissions.4
One questionably sound exception does exist. In criminal cases a jury may base a guilty verdict upon an instruction hypothesizing several acts conjunctively, if at least one hypothesized act is supported by evidence. In State v. Miles, 282 S.W.2d 542 [1-3] (Mo.1955), the court upheld an instruction hypothesizing assault with “feet, fists, and a certain blunt instrument,” despite a lack of evidence to support the charge of assault with a blunt instrument. But since the evidence did support the charge of assault with fists and feet, the court considered the “blunt instrument” language surplusage.5
The Miles situation is a far cry from the present case, in which no substantial evidence supports any element of the instruction.6 Instead, the verdict-director blindly follows the State’s information by hypothesizing defendant “did make an assault upon Wilson King and did then and there feloniously, willfully, on purpose, and of malice aforethought strike, beat, kick, and wound the said Wilson King with his hands, fists, and feet with means likely to produce death. . . .”
The sole testimony concerning the assault does not support the above submission. Wilson King testified: “I saw a man approach me from the back with an object about six or eight inches long. It was dark in color, at which time it was coming at my head and I through [sic] my head over to the left and it caught me under the jaw there. ... I was knocked down and dazed.”
The majority opinion construes the words “with means” as if they were synonymous with “instrument, agent or instrumentality.” Such a reading distorts the words’ context and violates the settled principle that an instruction should be interpreted as a reasonably intelligent juror would interpret it.7 And courts dealing with the phrase “means likely to produce death” have accorded the words their commonsense interpretation.8 In the present *224context, the phrase “with means” simply and logically means “in a manner.” The instruction tells the jury to decide if the assault was committed in a manner likely to produce death or injury. It does not ask the jury to speculate as to the use of a weapon. It requires semantic gymnastics to find assault with “hands” and “fists” merely because one could use hands to hold a weapon. There is no substantial evidence to support a submission that defendant struck King with his hands, fists or feet, and the trial court erred in giving Instruction # 2.
Even if I could agree with the majority’s reading of “means” as synonymous with “instrument,” I believe the instruction should be condemned for the admittedly unsupported conjunctive submission of beating and kicking with fists and feet. Such a submission ignores the spirit of the Committee Comment to MAI 1.02 barring conjunctive submissions: “The Committee believes that the jury should not be instructed on a theory of recovery or defense not supported by the evidence and that any such submission whether in the conjunctive or disjunctive, should be reversible error. A theory of recovery or defense should not be submitted unless it can stand alone. The present practice has been a crutch which has done but little but confuse by presenting imaginary issues for the jury’s determination.” In State v. Neal, n. 5, supra, the court was urged to apply the above principle to a criminal case but ruled there was no need to do so since there both conjunctive submissions did have evidentiary support. Such is not the present situation.
Both the MAI and Higdon, n. 3, supra, acknowledge the vice of factually unsupported submissions. The Supreme Court did not treat the issue in Miles, Neal or Cusumano, supra, and I urge the Court to reconsider the inconsistency.
I would reverse the present case and remand it for new trial.
. State v. Dupree, 477 S.W.2d 129 [1] (Mo.1972), State v. McClunie, 438 S.W.2d 267 [2] (Mo.1969), State v. Gray, 497 S.W.2d 545 [2] (Mo.App.1973).
. Rule 27.20(c).
. State v. Higdon, 356 Mo. 1058, 204 S.W.2d 754 [5] (Mo. banc 1947).
. State v. Agee, 474 S.W.2d 817 [7] (Mo.1971), State v. Amsden, 299 S.W.2d 498 [101 (Mo.1957), State v. Scott, 230 S.W.2d 764 [7] (Mo.1950).
. See also State v. Neal, 416 S.W.2d 120 [1-3] (Mo.1967), State v. Cusumano, 372 S.W.2d 860 [3] (Mo.1963).
. “Substantial evidence” is that which rises above speculation; it is evidence from which the jury can reasonably find the existence of a hypothesized fact. State v. Taylor, 445 S.W.2d 282 [4] (Mo.1969).
. State v. Jones, 365 S.W.2d 508 [13-15] (Mo.1963).
. State v. Wraggs, 496 S.W.2d 38 [6, 7] (Mo.App.1973), cert. den., 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 113 (1974).