concurring.
As appears from the principal opinion, defendant’s claim with respect to failure to instruct upon second degree murder is based on the sole contention that the trial court was obligated to instruct on conventional second degree murder by virtue of the provisions of the Supplemental Notes on Use in MAI-CR2d 15.00 series that where first degree murder is the highest homicide submitted, an instruction on conventional second degree murder must be given where “justified by the evidence.” In response to that particular contention, I agree with the principal opinion that the contention necessarily is answered against defendant because under the facts of this case there was no evidence other than that the killing of the victim took place while the kidnapping was still going on, whoever committed the crime.
In addition, although not mentioned by the parties in their briefs or arguments, instructing on conventional second degree murder would have created problems, as there was no separate charge of conventional second degree murder. See State v. Handley, 585 S.W.2d 458, 462-63 (Mo.banc 1979).