dissenting.
It is settled in Missouri that a court is without jurisdiction to enter a judgment of conviction against an accused as to an offense with which he has not been charged. Montgomery v. State, 454 S.W.2d 571 (Mo.1970). “Conviction upon a charge not made would be sheer denial of due process.” De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937).
Appellant Goddard was charged with capital murder. He was not charged with first degree murder. He was convicted of first degree murder. In my view, this judgment of conviction cannot stand.
Section 556.046, RSMo 1978, provides that a “defendant may be convicted of an offense included in an offense charged in the indictment or information.” However, in State v. Baker, 636 S.W.2d 902, 904 (Mo. banc 1982), this Court was compelled by § 556.046, supra, to recognize that “first degree murder is not a lesser included offense of capital murder.”
*893The majority “holds Baker is not retroactive, but prospective, in its application and the trial court did not commit reversible error in submitting first degree murder.” The majority gives undeserved stature to the opinion in Baker. The Criminal Code, not the opinion in Baker, mandated the Baker result. Section 556.031, RSMo 1978, states that the provisions of the code “shall govern the construction and punishment for any offense defined in this code and committed after January 1, 1979 * * The crime in this case was committed October 26, 1980. Therefore, § 556.046, supra, of The Criminal Code applies here and requires that the judgment be reversed and the cause remanded for new trial.
I respectfully dissent.