dissenting.
I respectfully dissent and for reasons stated below, I would reverse and remand this cause.
I
I cannot agree with the principal opinion’s treatment of appellant’s objection to the striking for cause of venireman Bum-garner under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The principal opinion found that Bumgarner had made it “unmistakably clear” that he would not impose the death penalty under any circumstance. In Witherspoon, supra at 516 n. 9, 88 S.Ct. at 1774 n. 9, the Court required that
Unless an venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.”
This requirement has been reiterated by the Court in Boulden v. Holman, 394 U.S. 478, 482, 89 S.Ct. 1138, 1140, 22 L.Ed.2d 433 (1969) and in Maxwell v. Bishop, 398 U.S. 262, 265, 90 S.Ct. 1578, 1580, 26 L.Ed.2d 221 (1970).
In Davis v. Georgia, 429 U.S. 122, 123, 97, S.Ct. 399, 400, 50 L.Ed.2d 399 (1976), the Court held that
“if [one] venireman is improperly excluded [under the Witherspoon standard] any subsequently imposed death penalty cannot stand.”
The Davis court cited Wigglesworth v. Ohio, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971) rev’g State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969). In that case the United States Supreme Court apparently disapproved of the Ohio Supreme Court’s conclusion that,
“Even if defendant could claim that the excusing of this one juror for cause was error, we have difficulty in seeing how any prejudice therefrom can be established, especially since the prosecution still had five or six peremptory challenges available to excuse that juror when selection of the jury was completed.”
248 N.E.2d at 614. If Bumgarner was improperly dismissed, as I contend he was, then the death penalty must be reversed.
The question and answers between the prosecuting attorney and venireman Bum-garner are set forth below. This exchange does not provide a constitutional basis for the exclusion for cause of Bumgarner from jury service.
“Q. Mr. Bumgarner, this is a charge of capital murder, which means that it does carry the possibility of capital punishment, or the death sentence. My inquiry is directed to find out what your attitude is toward capital punishment. If, during the trial of this case the facts and circumstances were developed that in fact the jury could consider capital punishment, would you, as a juror, consider capital punishment as a possible alternative?
*16A. I don’t think so.
Q. Are you morally and religiously opposed to capital punishment?
A. Yes.
Q. And you feel you couldn’t bring back a sentence of — the death sentence under any circumstances?
A. I don’t think so.
Q. So regardless of how severe and aggravated the circumstances are, you don’t feel that you could bring back a death penalty?
A. I don’t believe I could.
MR. HAMILTON: Thank you, sir. I have no other questions.”
The principal opinion relies on State v. Pride, 567 S.W.2d 426, 433 (Mo.App.1978) for the proposition that the response “I don’t think so” is not equivocal in its context; rather, that it is “common vernacular to express the negative.” I would first point out that Pride was not a capital murder case in which the death penalty could be imposed. Pride was an assault case, where defendant was a black man. The wife of one of the veniremen had had “an unpleasant encounter with blacks in the past.” When asked if that would affect him in sitting in the case, the venireman replied, “I don’t really think so, but I thought I would mention it.” This disclaimer is more emphatic than that in the case before us. Second, while I would agree that when someone says “I don’t think so” he may intend to express the negative, he may also mean that he is not sure. At best, it is equivocal, ambiguous, and uncertain. Bum-garner did not say that he would not be able to decide the issues on the basis of the law and evidence even though opposed generally to capital punishment. We are talking about taking defendant’s life by judicial order. In such circumstances, it is not the proper duty or function of the trial court or this court to “interpret” such a phrase by resolving the doubt in favor of the state when a man’s life is at stake and the United States Supreme Court has declared that
“Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment ... it simply cannot be assumed that that is his position.” (emphasis supplied)
391 U.S. at 516 n. 9, 88 S.Ct. at 1774.
Bumgarner’s view on the subject was left hanging in the air, unresolved. The With-erspoon test was not satisfied as to Bum-garner. If the prosecutor does not get an unequivocal response, then he is not entitled to have the venireman dismissed for cause. Cf. Adams v. Texas, 448 U.S. 38, 50, 100 S.Ct. 2521, 2528-29, 65 L.Ed.2d 581 (1980) in which the Supreme Court said:
“[Njeither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever [that being presented with the option to give death penalty would have on the prospective juror] is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty.” (emphasis supplied).
II
On the issue of sustaining fifteen challenges for cause on the ground that the venire persons were irrevocably committed against imposing the death penalty regardless of the circumstances, the principal opinion holds it will not reverse the conviction on the basis of studies indicating that “death qualified” jurors are not impartial on the issue of guilt. In addition to the studies cited by defendant and the studies cited in Hovey v. Superior Court of Alameda County, 28 Cal.3d 1, 616 P.2d 1301, 168 Cal.Rptr. 128 (banc 1980) and Grigsby v. Mabry, 483 F.Supp. 1372 (E.D.Ark.), aff’d, 637 F.2d 525 (8th cir. 1980), there should be added White, Death-Qualified Juries: The Prosecution-Proneness Argument Reexamined, 41 U.Pitt.L.Rev. 353 (1980) and Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?, 39 Tex.L.Rev. 545 (1961). The latter author states the defendant’s predicament well: “Were I to be charged with a capital of*17fense, I should greatly prefer to have the issue of my guilt or innocence tried by the first twelve people to pass the courthouse, no questions asked by prosecution or defense, than by a jury qualified upon the death sentence.” Oberer, supra at 545. (original emphasis). White, supra at 406, states: “If, as the Supreme Court has indicated, the conclusion that death is a punishment different in kind from all other punishments has committed our society to the ideal of providing fair and rational procedures which will fully safeguard the rights of capital defendants, then examination of the relevant data should lead to the conclusion that the death qualified jury, as it presently exists, should be eliminated from our system of justice.”
Under the Missouri Constitution, Art. I, § 18(a), defendant is entitled to trial by an impartial jury. This is an absolute right. There are no qualification or exceptions to it. The state is not entitled to the death penalty against this defendant as a matter of right. All it is entitled to is a jury which will consider the death penalty, assuming guilt has been determined. I do not believe challenges for cause at the outset of the trial are valid unless the prospective juror declares that his views on capital punishment are such as would prevent him from making an impartial decision as to defendant’s guilt. It does not follow that persons opposed to the death penalty are necessarily thereby unable to make an impartial decision as to defendant’s guilt. But that was never determined here — the prospective jurors were excluded simply because they would not vote for the death penalty. So defendant wound up with a jury which had no scruples against the death penalty, which is a far cry from having a jury with some members who oppose the death penalty but could nevertheless make an impartial decision as to guilt. This error in excluding prospective jurors who were not shown to be incapable of making an impartial decision as to guilt or innocence requires that the cause be reversed and remanded.
The studies mentioned earlier about death qualified juries being less than neutral with respect to guilt confirm what lawyers with broad trial experience already believe: it is easier to obtain a conviction of some sort with a jury which has no objections to the death penalty,1 just as it is easier to obtain a verdict in some amount for the plaintiff in a damage suit with a jury made up only of those who have no objection to awarding large amounts of damages.
Our present procedure permits prosecutors, merely by filing a capital murder charge, to obtain a death qualified, conviction prone jury, even though they promptly waive the death penalty upon conviction of guilt.2 This powerful incentive to overcharge would be eliminated if we restrict voir dire examination along the lines here suggested. It also would provide a more impartial jury.
Ill
I further disagree with the principal opinion’s holding that the evidence supported the jury’s finding of both aggravating circumstances. I do not believe that there was sufficient evidence to support the jury’s finding of the first aggravating circumstance — that defendant killed the victim as the “agent or employee” of Gardner.
Section 565.012.3(6), RSMo 19783 lists as an aggravating circumstance that “The offender ... committed capital murder as an agent or employee of another person.” Since there is no evidence that defendant was an employee of Gardner, we must as*18sume that the jury found defendant was an agent of Gardner. Black’s Law Dictionary 59 (5th ed. 1979) defines an agent as “A person authorized by another to act for him, one intrusted with another’s business.” See State ex rel. Pagliara v. Stussie, 549 S.W.2d 900, 903 (Mo.App.1977). Black’s, supra, also defines an agent as “One who acts for or in place of another by authority from him; a substitute, a deputy, appointed by principal with power to do the things which principal may do.” Cf. Mahler v. Tieman, 550 S.W.2d 623, 628 (Mo.App.1977): “A valid agency may be found where the conduct of the parties manifests the consent of one person to another that the other shall act on his behalf and be subject to his control and consent by the other so to act.” See also Restatement (Second) of Agency § 1 (1958).
The part of § 565.012.3(6) directed against one who commits capital murder as the agent or employee of another is meant for someone who fits the accepted concept of agent or employee. There is no evidence that such was the situation here. The only evidence upon which the jury could have based its finding that defendant was an agent of Gardner was that defendant asked Gardner what to do with Karen Keeton and Gardner replied, “Kill the bitch.” There is no evidence to demonstrate that Gardner had authority or control over defendant. The fact that Gardner said to defendant, “Kill the bitch”, followed by defendant’s strangling of the victim, does not establish a cause and effect relationship. It does no more than show that the two were in accord. Without further evidence of an agency relationship between Gardner and defendant, the first aggravating circumstance cannot be upheld.
The statute, § 565.012.1(1), and the appropriate MAI — CR2d instruction, 15.48, require that only those aggravating circumstances supported by the evidence be submitted for the jury to consider. It would be most unfair and prejudicial to permit the state to submit and argue to the jury aggravating circumstances not supported by the evidence.4 The legislature and this court properly required that aggravating circumstances which the jury is to consider in determining whether the death penalty is warranted be supported by evidence.
If the finding of the first aggravating circumstance is unsupported under the evidence, as I contend it is, then the sentence of death cannot stand. When one or more aggravating circumstances have been improperly submitted to, or found by, the jury (or the trial court), then, even if other aggravating circumstances were legitimately found, the case must be remanded for sentencing, § 565.014.5(2). The reason for this is simple: “[Rjegardless of the existence of other authorized aggravating factors we must guard against any unauthorized aggravating factor going into the equation which might tip the scales of the weighing process in favor of death.” Elledge v. State, 346 So.2d 998, 1003 (Fla.1977); See also Menendez v. State, 368 So.2d 1278, 1282 (Fla.1979). There is no way to determine what the jury would have decided as to penalty had they not improperly been allowed to consider as an aggravating circumstance that defendant was acting as Gardner’s agent. The jury may have felt free to tar defendant with Gardner’s reprehensible conduct in addition to his own. For other cases in which the courts have decided that failure of one or more aggravating circumstances was cause for reversal of the death sentence, see Bufford v. State, 382 So.2d 1162 (Ala.Ct.Crim.App.1980), cert. den., 382 So.2d 1175 (Ala.1980); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. den., 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). See also Stephens v. Zant, 631 F.2d 397, 406 (5th Cir.1980) in which the court observed:
“It is impossible for a reviewing court to determine satisfactorily that the ver-*19diet in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even it it found statutory aggravating circumstances. It is possible that even if the jurors believed that other aggravating circumstances were established, they would not have recommended the death penalty but for the [considering of the invalid aggravating circumstance].”
The court held that the submission of an impermissible aggravating circumstance to the jury did not permit the jury’s discretion to be sufficiently channeled, citing Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and that the process by which the death penalty was imposed was therefore not “rationally reviewable”, citing Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976).
The principal opinion cites several Georgia cases which uphold the death penalty even after one, or more, aggravating circumstance was found to be improperly considered. Georgia stands alone in arriving at this result. The first four Georgia cases cited in footnote 5 of the principal opinion rely on the fifth case, Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. den. 445 U.S. 938, 100 S.Ct. 1332, 63 L.Ed.2d 772 (1980). Gates, however, did not address how an aggravating circumstance which had been improperly submitted to, or considered by, a jury may affect the decision-making process of the jury; it merely makes the unsupported conclusion that,
“Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon.” 5
261 S.E.2d at 358 (emphasis supplied). I question that a court can state with certainty that a jury invariably based its imposition of a death penalty on any one of multiple aggravating circumstances when the jury found multiple aggravating circumstances.
Furthermore, the principal opinion implies that our death penalty statute is patterned after Georgia’s and therefore it follows that we should hold the same as Georgia. I cannot agree. This is Missouri, not Georgia. Georgia’s traditions and proclivities are not ours. According to the most recent Death Penalty Reporter (Vol. 1, No. 8) at p. 26, ninety-two people are on death row in Georgia compared to eight in Missouri. With all due respect to our sister state, we should not necessarily walk Georgia’s path just because our statutes are similar.
In any case, the similarity between our statute and Georgia’s is irrelevant here. Every state with a death penalty statute, including the three which hold contrary to Georgia, permit consideration of multiple aggravating circumstances. See, e. g., Ala. Code tit. 13, §§ 11-4 and 11-6 (1975); Fla. Stat.Ann. § 921.141 (Supp.1981); N.C.Gen. Stat. § 15A — 2000 (Supp.1979). There is nothing peculiar about Georgia in this regard. The only peculiarity is that we are proposing to hold as Georgia alone does. In my opinion, the reasoning found in the cited cases from Alabama, Florida, North Carolina, the Fifth Circuit and in the other cases discussed below goes unanswered by both the Georgia cases and the principal opinion.
Where one of the aggravating circumstances found by a death sentencing jury is improper, the situation is analogous to one where a general verdict of guilty has been returned by a jury instructed on alternative theories of conviction, one but not all of which permitted guilt to be rested upon an *20unconstitutional ground. Under Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) and many cases following it, such a conviction will not stand.
An analogy can be made to Missouri policy in civil cases that a “jury should not be instructed on any theory of recovery or defense which is not supported by the evidence ... . ” Hounihan v. State Farm Mutual Automobile Insurance Co., 441 S.W.2d 58, 63 (Mo.App.1969); See also Committee’s Comment to MAI 1.02, p. 7 (2nd ed. 1969):
“The Committee believes that the jury should not be instructed on a theory or defense not supported by the evidence and that any such submission 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 little but confuse by presenting imaginary issues for the jury’s determination.”
Further, “ [instructions on issues not supported by any evidence tend to authorize the jury to rove in reaching their verdict.” State v. Higdon, 356 Mo. 1058, 204 S.W.2d 754, 755 (banc 1947).
In Chilton v. Wright, 480 S.W.2d 1, 6 (Mo.1972), written by the author of the principal opinion herein, the liquor license of Modene Gatewood and Edd C. Chilton was revoked by the supervisor of liquor control on two grounds: (1) unlawful selling for resale and (2) unlawful possession of refilled containers. Our review showed a lack of substantial evidence to support the first ground, although there was substantial evidence to support the second ground. The license revocation was reversed and the cause remanded for reconsideration by the liquor supervisor, for the reason that the license was revoked “on the strength of two violations, one of which has been found unsupported”. The supervisor was directed to reconsider the matter for assessment of penalty, if any, on the basis of the single charge supported by the evidence.
In the Chilton case it was evident that the supervisor had revoked the license on two grounds, but one was bad. It could not be determined what he would have done had he limited his consideration to the only violation shown. Likewise in the case before us, the jury, as required by MAI— CR2d 15.48 and by the statute, § 565.012.4, set forth in its verdict the aggravating circumstances found beyond a reasonable doubt. The jury set forth two such circumstances. One of these circumstances, however, the “agent and employee” circumstance, is unsupported by the evidence. Here, as in the Chilton case, the death penalty (there it was the liquor license revocation) was imposed “on the strength of two violations (aggravating circumstances), one of which has been found unsupported.” If we reverse and remand for reconsideration where only a liquor license is involved, surely we can do no less where a life is at stake.
Submitting to the jury aggravating circumstances not supported by the evidence can only create confusion in the minds of the jurors and may impermissibly tip the balance in favor of the death penalty. We cannot say that the jury would have given defendant the death penalty in this case had the agent or employee aggravating circumstance not been submitted. When the death penalty is before us, we should not affirm on the basis of conjecture.
IV
While I agree with the avowal of. the principal opinion that we should not and will not permit § 565.012.2(7) to become a “catch all” subsection on aggravating circumstances, I do not agree that we discharge our duty under § 565.014.2(3) to determine “[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases” by restricting our consideration to cases in which both death and life imprisonment were submitted to the jury and which have been affirmed on appeal. This is too limited in scope. It eliminates from consideration all cases in which the state waived the death penalty, all cases in which life imprisonment was given and no appeal taken, all capital cases pending before us in which life imprisonment was given, and all cases in *21which capital murder was charged but the jury found defendant guilty of a lesser crime than capital murder. All these examples are cases in which the jury convicted defendant of murder but chose not to impose the death penalty. The purpose of appellate review of the death penalty is to serve “as a check against random or arbitrary imposition of the death penalty.” Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). It is our solemn duty, in my opinion, to guarantee that similar aggravating and mitigating circumstances do not bring about a death sentence in one case and life imprisonment in another. The statute and the Supreme Court cases require that the death penalty be imposed with an even hand. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). We are required to make a proportionality review. Gregg v. Georgia, supra.
By “similar cases” is meant similar capital murders, not limited only to those where both death and life imprisonment were submitted to the jury and then affirmed on appeal, whichever way the case went on punishment. The evil deed is the murder and what accompanied it and that, as well as the defendant, is what must be looked at in comparing what one defendant received in punishment under a capital murder charge with what another received. The fact that a capital murder defendant does not get the death penalty or gets a new trial or that the state waived the death penalty in his case or that his case is still pending before us does not mean that we can ignore his case in making our comparison. Once we accept the idea, as we must, that the death penalty cannot be inflicted at random, or arbitrarily or inconsistently, then necessarily we must take into consideration all capital murders we know about. We are furnished with a special assistant for this purpose. Section 565.014.6. He is to accumulate the record of all capital cases in which sentence was imposed after May 26, 1977. The statute says “sentence was imposed”. It is not limited to capital murders where the death sentence was imposed. As said in Baldus, et al., Identifying Comparatively Excessive Sentences of Death: A Quantitative Approach, 33 Stan.L.Rev. 1, 20-21 (1980),
“The efficacy of the review procedure also depends on the number of ‘similar’ cases used in the comparison and the completeness of the information available concerning those other cases. In other words, the apparent efficacy of the protection against comparative excessiveness which proportionality review can theoretically provide may be misleading. Whether defendants sentenced to death really receive that protection depends almost entirely upon the thoroughness and accuracy of the actual review process.”
Realizing as I do that to do so is no easy task, nevertheless, the principal opinion articulates no standard by which the review was made in this case or how the cases mentioned in the opinion in which a life sentence was given support the affirmance of the death penalty.
We see one capital murder ease after another in which the killing was horrible or atrocious or whatever other color word comes to mind and in which the defendant received life imprisonment, not death. See, for example, State v. Strickland, 609 S.W.2d 392 (Mo. banc 1980) (one victim shot in the head; in an adjoining room three other people were tied up and two of them were shot in the head; the third escaped when the gun pointed to her head did not fire, although she was later hit with a shotgun blast; state waived death penalty); State v. Holmes, 609 S.W.2d 132 (Mo. banc 1980) (sixteen year old victim stabbed sixty-four times with an ice pick; state waived death penalty); State v. Baskerville, No. 61661, pending before this court on life imprisonment sentence (multiple murders including seven year-old boy and his mother; boy was last to be killed and begged for his life).
In State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981), the 24 year-old defendant was convicted, life sentence, along with another (see State v. Turner, No. 61974, pending, life sentence) of the capital murder of the *22owner of a tobacco store and his employee, aged 72 and 61 respectively. The murders were committed in the course of a robbery. Both victims received blows to the head with a blunt instrument, such as a beer bottle, both had fractured ribs, and both received multiple stab wounds, apparently from a broken beer bottle. One victim was stabbed fifteen times; the other was stabbed five times in the chest and several times in the abdomen and other parts of the body.
In State v. Downs, 593 S.W.2d 535 (Mo.1980), the defendant was convicted of the capital murder of a married couple and their eighteen year-old daughter, with a life sentence. The defendant and others robbed the store owned by the couple and shot them each in the head. When the daughter returned-from her classes and approached an opened door she was grabbed by defendant and another and pulled into the store where her parents lay dead. The girl fell to her knees and begged for her life. The defendant put a gun to her head and shot her.
It seems to me that what Mr. Justice White concluded in Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (concurring) remains the fact. He said there that
“[t]he death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”
As said at the outset, I would reverse and remand for a new trial.
. One 1968 study concluded that the odds were twenty-four to one that jurors without scruples against the death penalty were more likely than the scrupled jurors to vote guilty. H. Zeisel, Some Data on Juror Attitudes Towards Capital Punishment 28-29 (1968).
. For example, in State v. Strickland, 609 S.W.2d 392 (Mo. banc 1980) and State v. Hall, 612 S.W.2d 782 (Mo., 1981), both from Jackson County, the prosecutor in each case after filing a capital murder charge and obtaining a death qualified jury, waived the death penalty immediately after obtaining a guilty verdict on the guilt or innocence stage of the trial.
.Unless otherwise indicated, all statutory citations are to RSMo 1978.
. The prosecutor, in arguing to the jury for the death penalty, said that Gardner told defendant to kill the victim, that defendant readily went along with this, and that the jury should “[rjemember that as an important piece of evidence.” So the jury was urged to consider the “agent or employee” aggravating circumstance as a justification for the death penalty. How can it be said they did not do so?
. In arriving at this conclusion, the Gates court cited Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), aff'd sub nom. 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Gregg, however, is inapposite. In that case, there were two different counts of capital murder. The death penalty had been given on both counts. When the Georgia Supreme Court reversed the death penalty on one count because of improperly submitted aggravating circumstances, it affirmed the death penalty on the other count which was based on properly found aggravating circumstances. Such is a completely different situation from Gates or the instant case.