concurring.
While I concur in the affirming of the judgment of conviction and sentence, I deem it necessary to add the following. The defendant in the case before us was charged with capital murder and was convicted by a jury. The sentence was life without parole or probation for fifty years.
Section 565.014.3(3), RSMo 1978 provides that in cases where the death penalty is assessed, one of the duties of this court is to determine “[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” By imposing this duty upon us, the legislature was attempting to comply with the constitutional requirements that the risk of arbitrary and capricious application of the death penalty be minimized and that consideration of the individual circumstances of each offender and each crime be given. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); State ex rel. Westfall v. Mason, 594 S.W.2d 908 (Mo. banc 1980). While in this particular case the prosecutor waived the death penalty (without giving any reason or explanation), in order to comply with our statute and make the required comparison, we must know what the facts are in capital murder convictions for which the death penalty was not assessed, as well as in those for which it was.
For this reason, therefore, even though defendant does not challenge the sufficiency of the evidence, it is necessary to make a more complete statement of the facts as to the crime and the defendant.
Defendant, a black man, was twenty-two years of age at the time of trial, which started March 12, 1979. He had a high school education. The defendant was em*140ployed as a nurse’s aide at the Ellis-Fischel Cancer Hospital in Columbia, where he worked the night shift. He had pleaded guilty in 1975 to a charge of stealing under $50.00. The victim, Glenn Chambers, also black, was sixteen years of age at his death, June 23, 1978. There was evidence that there was a homosexual relationship between them and that defendant “had been going with” Chambers for approximately five years. On Tuesday, June 20, 1978, three days before the crime, defendant told a witness who rode to work with him that Chambers was “trying to be smart” and he “was going to kill him.” Defendant, when asked why, said Chambers had told a lie, but would not say what it was. Defendant said he was going to “make a date” with the victim as if nothing were wrong and then that he and his cousin were going to kill Chambers by stabbing him with an ice pick some sixty odd times.
The next day defendant again said he and his cousin were going to kill Chambers that weekend. The witness told defendant not to kill Chambers as he would surely go to the penitentiary for it.
Chambers was seen getting into defendant’s automobile the next evening. Chambers’ body was found the next day near the Littleby Creek bridge, face down, on the ground
The doctor who performed the autopsy found sixty-four wounds in the body which he estimated to be one-thirty-second to one-eighth of an inch in diameter. He characterized the type of wound as an ice pick wound. There were nine separate wounds to the heart, one wound through the aorta, one wound to the pulmonary artery, two to the lobes of the liver and multiple wounds to the lungs and other portions of the body. In the doctor’s opinion, the nine wounds to the heart were fatal in nature and were the cause of death.
Defendant testified in person. He denied being a homosexual or having any such relationship with the victim. He denied killing or threatening to kill the victim. His defense was an alibi.
The report which we require the trial judge to make in a capital murder case while, of course, showing that no statutory aggravating circumstances were instructed upon and found by the jury (as there was no jury trial except on the guilt or innocence issue), listed under the heading of non-statutory aggravated circumstances indicated by the evidence, the following: “Victim stabbed some 60 times” and that there was no evidence of statutory or non-statutory mitigating circumstances. Under the heading as to whether the victim was physically harmed or tortured the report shows “Yes. Stabbed some 60 times.” The trial judge also reported the evidence foreclosed all doubt regarding defendant’s guilt and that he (the trial judge) “felt the sentence was acceptable.”