dissenting.
I respectfully dissent. The principal opinion demonstrates the classic catch-22 into which the majority has written the Court in an effort to affirm criminal convictions.
For a long period of time, instructing down on homicides has been one of the most confused areas of the criminal law. It has been one of the most perplexing problems facing our criminal instructions committee, which only last month met with the Court in an effort to find a solution to the problem.
Four recent cases in which defendants were charged with capital murder have put the ball in our “court.” Those are State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), cert. denied, - U.S. -, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983); State v. Daugherty, 631 S.W.2d 637 (Mo.1982), now pending in this Court on a motion to recall the mandate under the authority of Baker; State v. Holland, No. 62320 (Mo. banc argued Sept. 27, 1982); and this case. In Baker defendant was not given an instruction down on first degree felony murder. In each of the other three cases an instruction down on first degree felony murder was given. All four murders were committed after § 556.-*891046, RSMo 1978, became effective. The murders in Daugherty, Holland, and this case, and the trials thereon, all occurred prior to our decision in Baker. Daugherty and Holland are companion cases.
Baker was the first case involving instruction on lesser included offenses under a capital murder charge to recognize the existence of § 556.046. In Baker we held that defendant was not entitled to an instruction down on first degree felony murder because under the language of § 556.-046 that crime is not a lesser included offense of capital murder. 636 S.W.2d at 904-05. We pointed out that our prior cases holding that first degree felony murder was a lesser included offense of capital murder under § 556.046 were based on cases that interpreted a previous, and different, lesser included offenses statute. See Daugherty, 631 S.W.2d at 645 (relying on State v. Gardner, 618 S.W.2d 40 (Mo.1981)); State v. Fuhr, 626 S.W.2d 379, 379 (Mo.1982) (same).
Appellant herein contends that on the authority of Baker it was error to convict him of first degree felony murder because he was not charged with that offense. The principal opinion seeks to avoid Baker by holding that it is to be applied prospectively, thereby making affirmances possible in all of these cases. Baker, however, cannot be applied only prospectively. Baker merely applied the plain language of § 556.046, as written, to the Missouri homicide scheme. It made no attempt to construe that statute, which is part of the criminal code, in light of its intended relationship to the homicide statutes, which are not part of the criminal code. A statute applied as written must be applied only from the date it becomes effective. Either Baker is viable or it is not viable. To say that Baker is to be applied prospectively is to say that § 556.-046 is to be ignored between January 1, 1979, the date it was effective, and August 23, 1982, the date Baker was decided.
If Baker is viable, then the principal opinion works a flagrant deprivation of due process, for it allows appellant to be imprisoned for life on a conviction for a crime with which he was never charged. In Missouri there are but two ways in which a defendant can be charged with a criminal offense: either (1) expressly by the language of the indictment or information or (2) impliedly because the offense is a lesser included offense of that which is expressly charged. See State v. Wilkerson, 616 S.W.2d 829, 832 (Mo. banc 1981). See also State v. Stone, 571 S.W.2d 486, 487 (Mo.App.1978). This principle has been firmly entrenched in our system of criminal law for more than 140 years. See State v. Shoemaker, 7 Mo. 177, 180 (1841). In view of this fact there is no question that if Baker is viable, appellant was not charged with first degree felony murder. The express language of the indictment charged appellant with capital murder, not first degree felony murder, and Baker held that first degree felony murder is not a lesser included offense of capital murder. If Baker stands, appellant could not properly be convicted of first degree felony murder. It is fundamental that a defendant cannot be convicted of a crime with which he is not charged. Wilkerson, 616 S.W.2d at 833; State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979); State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971). Indeed, “[ejonviction upon a charge not made would be a sheer denial of due process.” De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). That is so because the trial court lacks subject matter jurisdiction to render a conviction for a crime that is not charged. State v. Gladies, 456 S.W.2d 23, 25 (Mo.1970); Montgomery v. State, 454 S.W.2d 571, 574-75 (Mo.1970).
The principal opinion does not deny that this jurisdictional defect exists. Instead, it treats the problem as one of harmless error, arguing that appellant was not prejudiced because “the evidence which supported the instruction on first degree murder is exactly the same evidence which would have supported a conviction of capital murder.” That argument falls on its own premise. In this case the same evidence that would have supported a conviction for capital murder would also have supported a conviction for robbery or attempted robbery. The princi*892pal opinion concedes that if appellant “acted at all, he acted in the commission or attempted commission of a robbery.” It is wholly foreign to our concept of criminal jurisprudence to suggest that a defendant could be convicted of robbery or attempted robbery under a charge of capital murder simply because one of those offenses happened to be proven concomitantly with the attempt to prove capital murder. The jurisdictional defect cannot possibly be harmless error, for in the absence of jurisdiction the conviction itself is the prejudice.
The principal opinion would appear to construe, rather than apply, § 556.046 based upon the historical development of Missouri homicide law and the enactment of the criminal code. It makes a strong case that the legislature did not intend for the words “specifically denominated by statute as a lesser degree of the offense charged” to change prior practice relating to instruction down on lesser included offenses. The drafters’ comment to that section indicates as much. See Mo.Ann.Stat. § 556.046 comment (Vernon 1979). The principal opinion stops short of resting its holding on that construction of the statute, however, and instead interjects the notion of prospective application of Baker. I could subscribe to a construction of the statute such as that which the principal opinion postulates if the Court would overrule Baker forthrightly.1 It is inconsistent to avoid Baker in this case and still retain Baker as viable in order to leave the conviction and death sentence in that case intact. I cannot be a party to such inconsistency.
The appearance of conservatism in the area of criminal law has become a shibboleth for many courts in view of the public demand today for law and order. We should not allow ourselves to be blinded to that fact. Nearly eighty years ago Mr. Justice Holmes warned that
[g]reat cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Northern Securities Co. v. United States, 193 U.S. 197, 400-01, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904) (Holmes, J., dissenting). We are bound to decide cases in accordance with principles of justice and not on the basis of our own perception of guilt or innocence. We are faced with a situation in which we must either apply Baker and grant Goddard, Holland, and Daugherty new trials or overrule Baker and grant Baker a new trial. To strain law and logic in order to reach the principal opinion’s result is to work a deprivation of individual liberty that true conservatism could not, and should not, condone.
. If we were to overrule Baker, we would also be obliged to recall the mandate in that case and remand the case for a new trial.