dissenting.
I respectfully dissent. The defendant is to be executed on the sole ground that the capital murder was committed against a peace officer while engaged in the performance of his official duty, § 565.012.2(8), without the jury at any stage in the trial being required to find that defendant knew or should have known that the victim was a member of the class described.
This is to be the outcome regardless of the fact that the victim was purposely disguised so that people would not know he was a police officer on duty. The impression deliberately sought to be made upon others was that the victim was a private citizen. Detective Erson was dressed in street clothes, blue jeans and a baseball jacket. He sat in an unmarked car. His police badge was out of sight in his wallet, which another officer discovered in Erson’s back pocket. The miniature police radio, found by the same officer on the car seat, was partially covered by Erson’s body. Er-son’s gun holster was concealed beneath his pants leg. Defendant testified that he did not know the victim or know that he was a police officer. Even in his first taped confession (the second was suppressed because of the beatings), there is nothing to indicate that defendant knew that the victim was a police officer on duty. While the principal opinion pronounces that the evidence “established beyond a reasonable doubt” that defendant knew the victim was a police officer, this was a disputed issue of fact, which was for the jury, not this court, to resolve.
*912No issue as to the victim being a peace officer on duty or defendant’s knowledge thereof was submitted to the jury in the first stage of the trial dealing with guilt or innocence. Capital murder was submitted under the standard MAI-CR2d 15.02, in which, of course, the victim was simply referred to by name, without anything being said as to the victim being an officer or whether defendant was aware that the victim was an officer on duty.
In the second stage of the trial, when it came to deciding whether the punishment would be a life sentence without possibility of parole for 50 years, or death, the jury was instructed only to determine whether the offense was committed against a peace officer while engaged in the performance of his official duty. Nothing was said about knowledge on the part of defendant. That part of instruction No. 19 read as follows:
In determining the punishment to be assessed against the defendant for the murder of Gregory Erson, you must first unanimously determine:
2. Whether the murder of Gregory Erson was committed against a peace officer while engaged in the performance of his official duty. It was the official duty of Gregory Erson to investigate possible incidents of prostitution in an area of the City of St. Louis, in his capacity as an officer of the St. Louis Metropolitan Police Department.
The jury thus was authorized to assess the death penalty on the undisputed fact that the victim was a police officer on duty. The jury should have first been required to find whether defendant had actual knowledge of this undisputed fact. We are not dealing with a malum prohibitum type of offense, such as running a traffic light or selling intoxicating liquor, where no mental element is involved.
Missouri juries have heretofore been required to find such intent under assault statutes. Both under repealed and present assault on officers and obstructing justice statutes (which impose maximum penalties far less severe than execution), the legislature has required that the defendant know his victim is a police officer to be found guilty of the aggravated offense. See, e.g., §§ 557.200, 557.210, 557.215 and 557.220, RSMo 1969, V.A.M.S. (repealed 1977); §§ 575.150, 575.160, RSMo 1978. The earlier versions of the statutes used the term “willfully”, rather than “knowingly”, but the court construed that language to require knowledge as a “necessary element for conviction under § 557.215” in State v. Copher, 581 S.W.2d 59 (Mo.App.1979). There the appellate court found reversible error in the state’s failure to instruct fully on the element of knowledge. The court found that defendant correctly argued for inclusion of the knowledge element when instructing under § 557.215, since that
statute makes it a separate and distinct crime to assault a police officer engaged in the performance of his duties.
What would ordinarily be a ... misdemeanor ... becomes a felony if the person willfully assaulted is a police officer engaged in his duties as such.
Id. at 61. The court concluded that “knowledge that the person assaulted is a police officer engaged in his duties is a necessary element for conviction under § 557.215.” Id. See also 18 U.S.C. § 1501; but see 18 U.S.C. § 111; compare United States v. Feola, 420 U.S. 671 at 686, 95 S.Ct. 1255 at 1264, 43 L.Ed.2d 541 (1975) (noting that knowledge may be a relevant factor under the federal assault statute, 18 U.S.C. § 111; which does not require the defendant to know his victim is an officer); United States v. Young, 464 F.2d 160 (5th Cir.1972) (vacating conviction under § 111 for failure to instruct on defendant’s ignorance of the victim’s official capacity as a possible defense).1
*913The principal opinion devotes scant attention to the mens rea aspect of the aggravating circumstance found in this case, dismissing it as “inscrutable” and stating that there was sufficient evidence from which it could be found that defendant knew the victim was a police officer. The latter is beside the point, however, because whether there is sufficient evidence is not the issue: the jury should have been instructed on the question of defendant’s knowledge and allowed to make its own factual determination. This was not done.
The implication of the principal opinion (with which I agree) is that knowledge is a necessary element for this particular aggravating circumstance to exist and clearly the legislature intended such. By making the killing of a police officer on duty an aggravated circumstance, for which the death penalty could be assessed, the legislature was striving to protect police officers through the threat of enhanced punishment. Where the perpetrator has no such knowledge, he could not be deterred by the death penalty possibility. The legislature must be taken to have realized that an unknowing assault could not be more reprehensible morally than if the victim had been, as defendant’s testimony indicated he believed, a private citizen.
The prosecution’s argument at the punishment phase is enlightening on this point. The prosecutor openly acknowledged that the jury had to find the element of knowledge, and erroneously argued that they already had:
The other aggravating factor [is that] they knew he was a police officer, and obviously, you found that in your initial verdict.... That’s why he was killed.
The jury should have been permitted to consider in mitigation that defendant did not know the victim was a police officer. But the jury had no reason to believe this was relevant or material, because all they had to find under the applicable instruction was that the victim was a police officer. This is contrary to what the statute intends. It does matter in deciding whether a defendant should suffer death for killing a police officer whether he realized or should have realized that was what he was doing. It is self-evident that an unknowing assault on an officer is less reprehensible than a knowing assault.
When an act is made criminal, “the existence of a criminal intent is to be regarded as essential, even when not in terms required.” State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 946 (1936). Before a statute is construed so as to eliminate intent or knowledge as an element of an offense, legislative intent to do so must be clearly apparent. State v. Gordon, 536 S.W.2d 811, 817 (Mo.App.1976); State v. McLarty, 414 S.W.2d 315, 318 (Mo.1967). The mere absence of the word “knowingly” does not negate the intent requirement; see Morissette v. United States, 342 U.S. 246, 261-264, 72 S.Ct. 240, 248-250, 96 L.Ed. 288 (1952).
The notion of mens rea is deeply rooted in American jurisprudence. American criminal law has long joined the guilty act with the guilty mind and has consistently required wrongdoing to be conscious to be criminal. Morissette v. United States, at 251-257, 72 S.Ct. at 243-246. Today, this court seeks to sever that tie, and sets a dangerous precedent by interpreting § 565.-012.2(8) as not requiring knowledge as an element of an aggravating circumstance. This defendant will likely be executed for the entirely fortuitous circumstance that the victim, who was dressed in civilian clothes and who to all appearances was a private citizen, turned out to be, unknown to defendant, a police officer. For these reasons, I would vote to reverse and remand for a new trial on the punishment issue or would reduce the penalty to life imprisonment without parole for fifty years.
. See also State v. Green, 629 S.W.2d 326 (Mo. banc 1982), in which this court reversed convictions under §§ 195.170(1) and 195.250, RSMo 1978, because the trial court failed to instruct the jury on the knowledge element. Although the statute did not specify knowledge as an element, the court held that §§ 562.021.2 and 562.026, RSMo 1978, permitted the court *913to dispense with the knowledge requirement only if the statute dearly indicated legislative intent to do so, as it did not in that case. Id. at 329.