dissenting.
I respectfully dissent and in so doing will utilize portions of the court of appeals opinion authored by Smith, J.
In my opinion the cause should be reversed and remanded for a new trial because the trial court erred in unduly restricting defendant’s voir dire examination to the prejudice of the defendant. The questioning of venireman Johnson is set forth in the principal opinion and need not be repeated here. Suffice it to say that it demonstrates that the prospective juror said that he did have a preconceived notion of what reasonable doubt means, after being informed that he would be instructed that to find the defendant guilty a juror must do so by a belief beyond a reasonable doubt. However, when the attorney for the defendant asked the prospective juror what that preconceived notion was, the court sustained the State’s objection to the question and defense counsel was prohibited from finding out what this preconceived notion actually was.
In State v. Brown, 547 S.W.2d 797 (Mo. banc 1977), this Court held at 799:
“The constitutional right to a trial by jury would be a mockery of justice if it did not guarantee a jury with open minds, freely able to follow the law as declared by the trial court. Faught v. St. Louis-San Francisco By. Co., 325 S.W.2d 776[1] (Mo.1959). Deeply ingrained in Missouri law lies the principle that ‘a liberal latitude is allowed in the examination of jurors on their voir dire .. The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.’ State v. Granberry, 484 S.W.2d 295[4, 5] (Mo. banc 1972), citing a series of cases going back to the oft-cited case of State v. Mann, 83 Mo. 589 (1884). Specifically, a defendant has the right to discover whether prospective jurors have fixed opinions against applying the court-declared law of self-defense. Compare State v. Lassieur, 242 S.W. 900[2] (Mo.1922); State v. Dill, 282 S.W.2d 456[7-9] (Mo.1955).”
In State v. Miller, 207 S.W. 797, 798 (Mo.1918), the following was stated:
“The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.”
For that reason a liberal latitude is allowed in the examination of jurors on voir dire. State v. Miller, supra; State v. Mann, 83 Mo. 589 (1884); State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972); Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34 (Mo.App.1967); State v. Coleman, 553 S.W.2d 885 (Mo.App.1977).
Littell, supra, quoted with approval from 31 Am.Jur. Jury § 139 (1958), as follows:
“Thus, reasonable latitude should be given parties in the examination of jurors to gain knowledge as to their mental attitude toward the issues to be tried for the purposes of aiding them in striking jur*231ors, if they are not successful in challenging them for cause.” 423 S.W.2d 36-7. (Emphasis supplied.)
The State asserts that the rule announced in State v. Smith, 422 S.W.2d 50 (Mo. banc 1967), applies and that the court’s restriction on the questioning was proper. The rule announced in Smith is that the individual views of the veniremen concerning the law is “immaterial unless so unyielding as to preclude them from following the law under the court’s instructions.” Id. at 68. Parenthetically, it is observed that here the parties could not know if the venireman’s notion was “unyielding” or not because of the court’s ruling. In any event, inherent in the rule announced in Smith is the supposition that the jury will be instructed on the law. MAI-CR 2d 2.20 is a mandatory burden-of-proof instruction. It contains a reference to “reasonable doubt” but does not attempt to define the term. The Notes on Use to that instruction state:
“3. No other instruction may be given elaborating further upon or attempting to define the presumption of innocence or reasonable doubt.” (Emphasis supplied.)
Three of the six instructions given to the jury at the close of the evidence contain reference to “reasonable doubt”. The doctrine that a defendant must be found guilty “beyond a reasonable doubt” is the cornerstone and hallmark of the criminal law in this country. Since under the criminal procedure of this State no definition of this phrase is permitted, it is apparent that the jury is left to its own interpretation or definition of what is meant by “reasonable doubt”. They must apply a subjective standard without guidelines from the court. Under those circumstances, the potential juror’s preconceived opinions about the meaning of the legal phrase is not immaterial at all; it goes to the very heart of his qualification to serve.
At a minimum, therefore, counsel, either prosecution or defense, should be able to inquire whether the veniremen have such a preconceived opinion and if so what that opinion is. This is not to say that counsel has a right to utilize voir dire to define the phrase, to argue the meaning of the phrase, or to require each venireman to define the phrase. The court retains great discretion in determining the phrasing and the extent of the questioning that will be permitted.
Here, however, the questioning of the venire panel had elicited the information that one venireman had a preconceived notion of the meaning of the term “reasonable doubt”. In my opinion, it was error not to permit counsel to find out what that preconceived notion was in order to intelligently determine the qualifications of that venireman — both for the purpose of challenging for cause and to exercise peremptory challenges.
I believe the principal opinion misses the mark when it disposes of the point in part by the observation that reasonable doubt is not to be further defined by the court in the instructions. The purpose of the voir dire was not to define “reasonable doubt” but was to find out what this particular juror had as his preconceived notion concerning that matter. It may well be that this court ought to formulate a definition of reasonable doubt instead of allowing it to be whatever the jurors seem to think it is. Regardless of that, it is simply an obvious fact that a juror’s “preconceived notion” of reasonable doubt might very well be so extreme as to permit defense counsel to challenge the juror for cause, or at least to afford defense counsel the basis upon which to exercise his peremptory challenges. Whether the court instructs upon the subject or not is beside the point.
Would the juror have responded by saying that if at the conclusion of the evidence he thinks the defendant is probably guilty, then that is sufficient? Or might the juror have responded that if there was even the slightest doubt in his mind concerning guilt he would acquit? It is not fruitful to speculate on what a juror would say because voir dire examinations produce such varied and unexpected responses that speculating on the matter has little chance of becoming an accurate prediction. As it stands here, however, one of the veniremen had a preconceived notion as to what a very impor*232tant aspect in the trial of a criminal case meant, and defense counsel was prevented from having that information available to him in connection with either the challenge for cause or the peremptory challenge.
The reasoning of State v. Brown, supra, applies to this case as do the other cases that have been cited supra and in my opinion requires that the judgment be reversed and the cause remanded for a new trial.