dissenting.
I respectfully dissent. My reasons are that I consider instruction no. 8, the instruction under which defendant was convicted of capital murder, prejudicially erroneous in two respects. First, under its wording the jury was authorized to convict defendant even if they believed defendant neither shot the victim nor proposed to kill anyone found in the house and tried, although ineffectually, to dissuade Brooks from killing decedent after defendant realized what Brooks was about to do. Second, instruction no. 8 contained a confusing conflict as to the burden of proof.
Of these in the order stated.
I
The state charged defendant, tried him, and instructed the jury on the theory that he was guilty of capital murder no matter whether he or Brooks fired the weapon which killed the decedent, lying helpless and submissive on the couch. The testimony as to what took place at the Howell residence came from two of the participants. One was Frank Brooks, who testified for the state. The other was defendant, who testified for himself. The only other person who would have been able to shed any light on what took place throughout the sequence of events was the third participant, Dennis Skillcorn. Dennis Skill-corn, however, was not called as a witness by either side and did not testify before the jury.1
On Brooks’ testimony the state, of course, made a case against defendant of capital murder. According to Brooks, defendant announced in advance his (defendant’s) intention to kill anyone found in the house during the burglary and then proceeded to do so.
*101There were some practical problems with resting the state’s case unequivocally upon the Brooks testimony. Brooks had made a deal with the state (as was made known to the jury) that in return for his testimony against defendant Brooks would receive a sentence of not more than twenty years on the pending charge against him of murder of the decedent. In addition, Brooks was also under charge of capital murder on another killing and part of the agreement was that on that charge also he would receive a sentence not in excess of twenty years and that the two sentences would run concurrently. Defendant, on the other hand, had no prior murders on his record.
The state tried the case throughout on the theory that defendant was guilty of capital murder no matter whether the jury believed it happened the way Brooks testified or whether it happened the way defendant testified. How the defendant said it happened will be set forth shortly. The prosecutor took up instruction no. 8 paragraph by paragraph in his argument to the jury. He first argued that the jury should accept Brooks’ testimony, but then he argued that even if the jury believed defendant’s testimony that it was Brooks, not defendant, who fired the shot that nevertheless defendant was guilty of capital murder; that even under defendant’s own testimony he was guilty of capital murder under instruction 8 because he knew or was practically certain that Brooks was going to do it — i.e., shoot decedent.
What was defendant’s testimony? Defendant testified that the three of them— Brooks, Skillcorn and defendant — planned to burglarize the Howell farmhouse. They originally intended to commit a burglary somewhere else in the Buckner or Levasy area. They first approached a trailer, but saw someone nearby so they left and went next to the Howell residence. Skillcorn knocked on the door and Howell answered the knock. Skillcorn thereupon returned to the automobile and the three of them went down the road three or four miles, stopped and decided to “cowboy” the old man and his house (meaning, according to defendant, to rush in, grab what was in sight, and rush out).2 Defendant insisted there was no discussion about hurting or killing anyone and that he owned no gun. Defendant testified they drove back to the Howell farmhouse, parked the car and walked up to the house. According to defendant’s testimony this is what then occurred: Brooks (who was twenty-two years of age, a large man, weighing 235 pounds and six feet two inches in height) entered the house first and when defendant came in Mr. Howell was lying on the couch. Defendant removed Howell’s glasses and told him to turn his head to the inside of the couch, which he did. Defendant watched the old man and made sure no one was driving up to the house while Brooks and Skillcorn searched the various rooms and drawers. As they were leaving with what they had stolen (television set, jewelry, cash, sirloin steaks), Brooks said he (Brooks) ought to kill the old man. Defendant told Brooks that they were all wearing gloves, and the old man did not have his glasses and had not turned around to look at them. Defendant testified he thought he had talked Brooks out of hurting the old man. Brooks, nevertheless, pulled the shotgun out from under his belt and shot the victim. Defendant did not have a gun and had not seen the shotgun until Brooks pulled it out of his trousers.3 Defendant said Brooks left and defendant stood there for a minute or two to get over the “stun” and then he too left the house, got in behind the wheel of the car, and they departed.
Instruction no. 8 is not to be found in MAI-CR 2d. It therefore does not carry the MAI-CR 2d presumption of validity. It *102must, of course, declare the law and “require the jury to find every fact necessary to constitute the essential elements of the offense charged”, State v. Elbert, 438 S.W.2d 164, 165 (Mo.1969), State v. Singleton, 602 S.W.2d 3, 8 (Mo.App.1980); rule 28.02. Capital murder, as we know, occurs when, but only when, a person “unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human being”, § 565.001, RSMo 1978.
What does instruction no. 8 tell a jury of laymen, trying to decide the facts and apply the law, as to what it takes for defendant to be guilty of capital murder?4
Paragraphs first and second of the above instruction refer to burglary of the Howell house and the aid by the defendant of Skill-corn and Brooks in the commission of burglary. These two paragraphs do not refer to capital murder, but deal with helping commit burglary.
Defendant, however, was not charged with burglary. Paragraphs first and second are unnecessary for and add nothing to what is required for a conviction of capital murder, although they would be pertinent for conviction of first degree murder.
The same is true of paragraph seventh. Committing the homicide for the purpose of escape or to avoid detection of the burglary would be appropriate for a conviction of first degree murder, as an offense committed in the perpetration of, or in the attempt to perpetrate, the burglary here involved. In fact, MAI-CR 2d 15.06 — Murder in the First Degree in Burglary, contains the language under discussion as its paragraph second, to-wit: “Second, that the defendant did so to promote escape after committing or attempting to commit burglary at” (the described location). But, it is not an element of capital murder, which is what instruction no. 8 purports to cover.
Paragraphs third, fourth, fifth and sixth of instruction no. 8 address the jury in terms of “defendant or another” doing, intending, knowing, or considering certain acts or deeds. These submissions are all in the alternative, the disjunctive. We cannot determine from the general verdict of guilty5 whether the jury, in convicting defendant of capital murder, determined that it was defendant or another who had the intent and did the shooting. These four paragraphs do not require, as a predicate to conviction, that the jury find the defendant himself held any of the intents mentioned or committed any of the acts described. The jury could have found, under the evidence, in applying the instruction that it was Brooks who intended and acted.
*103The final numbered paragraph, paragraph eighth, is also in the disjunctive: that “the defendant committed or knew such other persons were practically certain to commit such additional offense.” Again, it cannot be determined from the verdict whether the jury found that defendant shot Howell or simply that he knew Brooks, at some unspecified juncture, was practically certain to do so.
Thus, instruction No. 8 permits the jury to find defendant guilty of capital murder if the jury finds the following:
1. That Skillcorn and Brooks, with defendant’s aid, burglarized the Howell residence.
2. That defendant with the purpose of committing burglary aided Skillcorn and Brooks in doing so.
3. That Brooks shot Howell.
4. That Brooks intended to kill Howell.
5. That Brooks knew he was practically certain to kill Howell.
6. That Brooks considered taking Howell’s life and reflected upon it coolly and fully before doing so.
7. That the offense was committed by Brooks to promote escape or prevent detection of the burglary.
8. That defendant knew Brooks was practically certain to kill Howell.
9. That defendant is not entitled to acquittal by reason of abandoning his purpose of committing capital murder and making a proper effort to prevent the homicide.
Nowhere is it required that the jury find there was an act or intent on defendant’s part, other than with respect to the burglary. There was evidence before the jury to support items one through seven above as to Brooks’ conduct, but these would not constitute capital murder on the part of defendant.
Item eight requires that defendant knew Brooks was practically certain to kill Howell. In the literal sense, when Brooks announced he was going to kill the old man, aimed the shotgun at the victim’s head and then pulled the trigger, defendant did come to know that Brooks was practically certain to kill Howell. The inevitable end result was obvious. But surely this kind of knowledge, which would come to anyone who heard and saw what Brooks was doing, is not sufficient. Yet that is all the instruction requires. The instruction substantially enhances the possibility that even if the killing of Mr. Howell took place as defendant testified, that the jury would nevertheless find defendant guilty of capital murder. It is well established that mere presence at the scene of the crime is not sufficient to support a conviction, State v. Arnold, 566 S.W.2d 185, 189 (Mo. banc 1978); State v. Allen, 420 S.W.2d 330, 333 (Mo. 1967) and it would seem equally sound that merely becoming aware at the last moment of what Brooks was going to do is not sufficient to convict defendant of capital murder.
Under instruction no. 8, the jury could have accepted defendant’s version that there was no more than a burglary planned, that it was Brook’s idea, unexpressed until the men were about to depart, to do away with the victim, and that Brooks did the shooting despite defendant’s efforts to dissuade him, yet find defendant guilty of capital murder.
We cannot declare or treat defendant’s testimony unbelievable as a matter of law or declare that the jury should not believe defendant. That is a matter exclusively for the jury. If defendant were unarmed and intended to and did aid only in the burglary and stealing and if there were no plan in advance to kill the occupant of the house, and if Brooks had the shotgun and used it to shoot the deceased at point blank range, despite defendant’s protests and without defendant doing anything to aid in the shooting, then defendant did not have the culpable mental intent required for capital murder and the culpable intent of Brooks to kill Howell cannot be transmitted or imputed to defendant under the above facts. If it could be, then what it takes to constitute capital murder for an accomplice would be less than what is required for the principal.
*104If the state intended to prosecute defendant in the alternative — to convict him of capital murder either as the principal or as one who helps another do the act — then the instruction must submit to the jury hypotheses which are supported by evidence and which, if found, establish that the defendant, if not acting as the principal, had the intent and purpose to kill required for capital murder. Alternate theories supporting conviction may be submitted so long as each theory is supported by evidence. State v. Green, 511 S.W.2d 867, 874 (Mo.1974); State v. Hayes, 572 S.W. 882, 885 (Mo.App.1978). Here, the jury, if they believed Brooks was the one who shot Howell, in order to convict defendant had only to find additionally under instruction no. 8 that defendant, at whatever time, knew Brooks was practically certain to kill Howell. This is not sufficient to make defendant guilty of capital murder under the circumstances of this case if Brooks did the shooting, which was one of the alternative theories submitted.
The principal opinion speaks of “a capital murder [which] occurred as the legally proximate result of the burglary”, but it does not follow that because the homicide occurred as the result of the burglary that it is capital murder. If it were committed in the perpetration of the burglary, without a premeditated intent to cause the death of decedent, it would be first degree murder under § 565.003, RSMo 1978. It takes more than that to be capital murder.
The principal opinion states that “defendant knew another was practically certain to commit a capital murder”, but this unqualified statement is too broad taken at its face value under the special circumstances of this case, as earlier pointed out. The principal opinion states that as to the critical mens re “if defendant knew others were practically certain to commit a capital murder in the course of conduct for which he was criminally responsible, i.e. burglary, then he had the same intent as the active participant, including knowledge, premeditation and deliberation. To know that another is practically certain to commit capital murder is to know what that person will do and with what intent he will do it. With this knowledge, to purposely promote the commission of an offense that results in a capital murder is to possess the requisite intent.” This means that if defendant promoted the burglary during which Brooks committed a capital murder, it follows that defendant is guilty of capital murder. This is not necessarily true. It depends on what defendant did in addition to promoting the burglary (although this would not be the case as to first degree murder). The principal opinion states that the defendant promoted the burglary though “he knew fully that someone would be killed either by his own hand or by a co-participant.” Respectfully submitted, the evidence is in direct conflict on this vital point. According to Brooks, yes, but according to defendant there was no plan to kill in connection with the robbery and he did not know that anyone would be killed until just before Brooks did the deed, over defendant’s protest.
The principal opinion takes the position that instruction no. 8 is good under State v. Robinson, 641 S.W.2d 423 (Mo. banc 1982) and State v. White, 622 S.W.2d 939 (Mo. banc 1981), cert. denied 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). I respectfully disagree. In Robinson, the capital murder instruction required much more to convict defendant, in event he was not the triggerman, than that he knew the other person was practically certain to commit a capital murder.
In White, the same is true. There the instruction repeatedly hypothesized that “Hardy Bivens with the aid or attempted aid of the defendant” did so and so. The instruction always required the jury to find that defendant aided Hardy Bivens in whatever the latter did. The guilty verdict had to mean under the instruction that the jury found defendant helped Bivens in all that Bivens did. That is not so under Instruction No. 8 and the verdict in the present case. Neither cited case, therefore, is a basis for upholding the instruction here.
II
The second problem with instruction no. 8 is that despite the explicit direction of note *1054, MAI-CR2d 2.12, that when the affirmative defense of withdrawal is given (as it was in instruction no. 6 discussed below), then the usual general converse contained in the final paragraph of the verdict directing instruction must be omitted, it was not omitted here. Instead, it was included, which the principal opinion concedes was error. This error makes it impossible to consider instruction no. 8 without being confronted with the confusing contradiction between the last two paragraphs of the instruction as to what burden of proof it takes to convict.
The general converse which concludes instruction no. 8 required “each and all” of the propositions preceding it to be found “beyond a reasonable doubt" in order to convict; otherwise the jury must acquit.
However, the paragraph of no. 8 immediately preceding the general converse paragraph has a different burden of proof, one prescribed by statute, § 562.041.2(3), as it involves an affirmative defense. This paragraph tells the jury they will find defendant guilty of capital murder “unless you find and believe from the evidence that it is probably more true than not that defendant is not entitled to acquittal by reason of Instruction No. 6”.6 When we look at instruction no. 6, however, we find the burden of proof is there declared to be “If you further find that it is more probably true than not true”, etc.
It is impossible to reconcile the two paragraphs on what is the burden of proof. One tells the jury what it takes to acquit using one standard of proof, while the other tells the jury what it takes to acquit using a different and lesser standard of proof. If the jury should believe defendant had met his burden on instruction no. 6, the jury was then told in the following paragraph of instruction no. 8 that in order to acquit defendant the jury must be guided by a higher standard of proof.
It is apparent the drafters of MAI-CR2d realized the contradictory and confusing effect of using the “However” clause along with the affirmative defense, as seen by note 4, mentioned above. Their directive not to do so was ignored here. The jury was left with conflicting instructions on the burden of proof.
The principal opinion says the instruction could not have confused the jury, as the instructions taken together informed the jury of all aspects of the case, citing various cases stating the general proposition that instructions are to be read as a whole. However, none of the cited cases involved an instruction containing an expressly prohibited clause, in direct violation of MAI-CR2d, where, as here, the inclusion of the prohibited clause presented the jury with two conflicting burdens of proof. This could easily have been avoided by following the MAICR2d admonition. Where a defendant is faced with a capital murder charge, he is entitled to a correct instruction, particularly in the burden of proof area.
. It appeared from testimony outside the presence of the jury that Skillcom had earlier been tried and convicted for the same murder and was sentenced to thirty-five years.
. The principal opinion defines “to cowboy” as meaning “to frighten out of one’s wits.” Neither what defendant said it meant nor what the principal opinion says it means equates to a declaration of intent or a plot to kill whoever was in the house.
. The record is silent as to the ownership of the shotgun. It was found the day following the murder at the residence of one Everett Stan-field, where Brooks and Betts spent the night after the murder.
. Instruction no. 8, for convenience, is repeated below:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on December 2, 1979 Dennis Skil-com and Frank Brooks with the aid or attempted aid of defendant committed the offense of burglary of the Wendell Howell home, and
Second, that the defendant, either before or during the commission of the offense of burglary with the purpose of promoting its commission, aided such other persons in committing that offense, and
Third, that on December 2, 1979 in the County of Jackson, State of Missouri, the defendant or another caused the death of Wendell Howell by shooting him, and Fourth, that the defendant or another intended to take the life of Wendell Howell, and Fifth, that the defendant or another knew that he was practically certain to cause the death of Wendell Howell, and Sixth, that the defendant or another considered taking the life of Wendell Howell and reflected upon this matter cooly and fully before doing so, and
Seventh, that such offense was committed by the defendant or such other persons to promote escape or to prevent detection for the offense of burglary, and Eighth, that the defendant committed or knew such other persons were practically certain to commit such additional offense, then you will find the defendant guilty of capital murder, unless you find and believe from the evidence that it is more probably true than not true that the defendant is not entitled to an acquittal by reason of Instruction No. 6.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
. The verdict read: “We the jury find the defendant, James Betts, guilty of capital murder as submitted in instruction No. 8.”
. The quoted language is difficult to follow at best. It involves a clause starting with “unless”, followed by two negatives. See fn. 4, supra. As said in State v. Minnis, 486 S.W.2d 280, 285 (Mo. 1972),
While a lawyer could, with some patience and difficulty, harmonize this ravel of contradictory directions, it is not to be expected of a jury of laymen.