dissenting.
I respectfully dissent. The case at bar presents a defendant who was convicted of capital murder in a bifurcated trial wherein the jury first decides his guilt and, after finding him guilty, in a second stage decides whether the death sentence will be imposed. In this second stage, pursuant to statute, the state presented evidence of aggravating circumstances and the defendant presented evidence of mitigating circumstances for the jury’s consideration in determining whether to impose the death sentence. The jury determined a single issue, whether the facts marshalled by the state affirmatively justified the imposition of the death sentence on Robert Bullington.1 The jury found against the state, deciding that none of the possibilities presented warranted the death sentence. The state now demands that it again be permitted to present the same facts to a second jury with the hope that the new jury will decide to execute the defendant. Three times during his oral argument before this court, the prosecuting attorney conceded that the state would offer the same evidence in support of its demand that Robert Bullington be sentenced to death.2 The principal opinion will permit the state to relitigate a jury’s determination that the death sentence is inappropriate whenever a defendant sentenced to life imprisonment succeeds in overturning an unconstitutional capital conviction.
The principal opinion does not distinguish the very different cases presented by single stage trials and the bifurcated trial re*923quired for the imposition of the death penalty. By not distinguishing the cases, the analysis overlooks the unanimous authority denying the state a second jury determination as to the death penalty once a jury singularly and affirmatively finds that the defendant is not to be put to death. The cases cited as authority in the principal opinion go back more than fifty years, long prior to establishment of present day standards and requirements which make a death penalty case unique. There has never been anything like it before. The cases relied on by the principal opinion all involve single stage proceedings and do not encompass or address in any respect the issues and complexity presented by the two separate trial stages required by the more recent United States Supreme Court cases for conviction and sentencing of the capital murder offense. The only cases directly in point, not all of which are discussed by the principal opinion, reach an opposite result.
I
In 1976, the United States Supreme Court upheld the constitutionality of Georgia’s bifurcated trial procedure for capital offenses in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In a companion case, Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the Supreme Court held unconstitutional North Carolina’s mandatory death penalty statute for first-degree murder. In Woodson, the plurality opinion stated that the Constitution requires “particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.” 428 U.S. at 303, 96 S.Ct. at 2991.
In 1977, the Missouri legislature enacted a bifurcated trial procedure for capital offenses, now §§ 565.008 and 565.012, RSMo 1978, patterned on the Georgia statute upheld in Gregg. The Georgia statute, Ga. Code §§ 27-2503 and 27-2534.1 (1975), provides for a trial in two stages, one for a determination of guilt, and a second for a determination as to whether the degree of the convicted defendant’s guilt justifies his execution. Under both statutes, a jury that convicts a defendant of capital murder in the first stage must then in the second stage hear new evidence and determine whether the defendant’s guilt will be punished by a life sentence or whether his guilt is such that he should be put to death.
In the instant case, the principal opinion apparently finds that this determination by the jury in the second stage of trial is merely assigning punishment within the range provided by statute and not a finding of what is required to justify the death penalty. But in Woodson, the Supreme Court rejected this view: “[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” 428 U.S. at 305, 96 S.Ct. at 2991 (emphasis added).
The principal opinion makes much of the fact that there is but one crime of capital murder and refuses to acknowledge that the statutory framework treats capital murder markedly different than any other crime. It is true that § 565.001, RSMo 1978, defines capital murder. But taken alone it is incomplete. Without a penalty being prescribed, it is no more than an abstract declaration of law. A killing may be unlawful, willful, knowing, deliberate and premeditated, yet that is not all capital murder encompasses. In addition to guilt, there must also be found by the jury, beyond a reasonable doubt, aggravating circumstances which the jury must designate in writing in its verdict. Capital murder is meaningless without the punishment. There is no such thing as a conviction of capital murder per se without more. It has to be either capital murder with death or capital murder with life imprisonment, without probation for fifty years, etc. This does not “rend” the crime of capital murder. Rather, it recognizes what we all know to be the fact.
*924The statutes dealing with the crime provide for a unique two stage proceeding and require that the jury must affirmatively find beyond a reasonable doubt additional aggravating circumstances before it can impose the death penalty. By requiring that the additional element of aggravating circumstances be proven beyond a reasonable doubt for the imposition of the death penalty, the statutory framework effectively establishes the crime of aggravated capital murder punishable by death and the crime of capital murder punishable by life imprisonment without the possibility of probation or parole for fifty years. The legislature had no choice but to enact two degrees of punishment for the crime of capital murder. Had the legislature separated the degrees into two separate offenses, with one of a higher degree punishable only by death, the statute would have been unconstitutional under Woodson as a mandatory death penalty statute.
Accordingly, this case presents much more than the potential for enhanced punishment upon retrial under a single-verdict procedure. The issue in this case is whether, under the bifurcated trial procedure for capital cases, the state can ignore the jury’s implicit acquittal of the defendant of what is required to justify imposition of the death penalty and on retrial once again ask a jury to find what it considered and declined to find in the first trial.3
The principal opinion would smudge the question of what issue the jury decided in the first trial when it gave defendant life imprisonment instead of death. The principal opinion speculates that perhaps the jury “intuitively” found the mitigating circumstances outweighed the aggravating circumstances or that perhaps the jury’s “predilections as to mercy” explain the verdict or that perhaps it was in response to “a defendant’s plea for mercy rather than finding no aggravation.” There is no way we can know what may have subjectively impelled the jury to reject death and agree on life imprisonment. What we do know is that the jury has resolved the issue under instructions which, as pointed out below, presented it with a single, narrow issue for decision. The only “single rationally conceivable issue in dispute before the jury”, Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1969), after guilt was decided, was whether this defendant was to receive death or life imprisonment under the terms and conditions of the instructions given.
MAI-CR 15.30 instructs the jury that “at this stage of the trial it will be your duty to determine within the limits prescribed by law the punishment which must be imposed for the offense.”
MAI-CR 15.32 instructs the jury it is to go to the jury room, “deliberate and arrive at your verdict fixing the punishment to be imposed upon the defendant.”
MAI-CR 15.36 instructs the jury “it is your duty and yours alone to decide upon' the punishment to be imposed upon the defendant . . ”
MAI-CR 15.40 concludes by instructing the jury, “Therefore, if you do not unanimously find from the evidence beyond a reasonable doubt that the foregoing circumstance exists and that it is an aggravating *925circumstance,4 you must return a verdict fixing the punishment of the defendant at imprisonment for life . . . ”
The same is true with respect to MAI-CR 15.42, which requires a verdict of life imprisonment if the jury does not find the aggravating circumstances are sufficient to warrant death.
MAI-CR 15.44 requires the jury to return a verdict of life imprisonment if the mitigating circumstances outweigh the aggravating circumstances.
Finally, MAI-CR 15.46 tells the jury that even if the mitigating circumstances do not outweigh the aggravating circumstances, the jury is not compelled to arrive at a death verdict.
Therefore, the verdict of life imprisonment in the first trial had to mean one of four things:
1. The jury did not find aggravating circumstances, or
2. It did not find the aggravating circumstances were sufficient to warrant death, or
3. The mitigating circumstances outweighed the aggravating circumstances, or
4. Even if they did not, the aggravating circumstances were not sufficient.
To use the language of Ashe, supra, this jury, under the instructions, could not have grounded its verdict as to life or death upon an issue other than that which the defendant seeks to foreclose from consideration— namely, that under the facts presented by the state, which the prosecution says will be the same on retrial, none of the possibilities warranting the death sentence existed.
This case raises squarely the issues of the rule of collateral estoppel embodied in the fifth amendment guarantee against double jeopardy as enunciated in Ashe v. Swenson, supra. In Ashe, the Supreme Court held that the applicability of the rule in criminal cases “ ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” 397 U.S. at 444, 90 S.Ct. at 1194 (citing Sealfron v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 239, 92 L.Ed. 180). Viewed with an eye to all the circumstances of the proceedings, the case at bar presents a prior jury determination of “the single rationally conceivable issue in dispute”, whether the defendant’s guilt was such as to justify the death penalty. See Ashe, Id., 397 U.S. at 445, 90 S.Ct. at 1195. Because the jury in the second stage of the trial found that the aggravating circumstances were either not present or were insufficient, the state should not be given a second chance to present the question to another jury.
II
Three state supreme courts have addressed the precise issue before this court, each of which held impermissible the state’s attempt to relitigate at a second trial whether the convicted defendant’s guilt justified the death penalty after the first jury decided the death penalty was not justified. Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (1977); Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969); People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963).
In Ward v. State, supra, the Georgia Supreme Court found the imposition of the death penalty in the second trial unlawfully disproportionate to the life sentence imposed by the first jury. The court found the disparity in sentences impermissibly disproportionate under Ga.Code § 27— 2537(c)(3) (1975), which is word for word the same language contained in Missouri’s statute providing standards for review of death penalty cases, § 565.014.3(3), RSMo 1978, as well as under the United States Supreme Court’s standards in Gregg v. *926Georgia, supra.5 The Georgia court concluded:
“The same defendant was tried previously on the same charges and the jury imposed a life sentence. Therefore the death sentence in the case under review is obviously disproportionate to the life sentence previously imposed against the same defendant in the same case. Accordingly, the law requires us to vacate the death sentence and direct the imposition of a life sentence. . . . To do otherwise would be incongruous and contrary to the clear mandate of the law. Por as was said by the United States Supreme Court in Gregg, ‘[t]he provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by action of an aberrant jury.’ Gregg, supra, 428 U.S. at 206, 96 S.Ct. at 2940.”
236 S.E.2d at 368. Because the Georgia and Missouri statutes providing standards for review of death penalty cases are almost identical, this case is certainly persuasive authority for denying the state on retrial a second chance to litigate its demand that the defendant be put to death once the first jury decides the issue against the state.
In the case at bar, the principal opinion attempts to distinguish the Ward case “in that the evidence had been presented at the subsequent proceeding and that evidence ‘was essentially the same’ as that presented at the first trial where the jury did not recommend a sentence of death.” Büt as noted above, the prosecuting attorney in this case conceded during oral argument that the state’s evidence in a second trial would be the same as that presented at the first trial. The principal opinion also says that the fact the “notice” required by § 565.006-2 as given in the instant case contains the same general averments of aggravation as the earlier notice should not be held to foreclose additional proof within the scope of the notice. But that is not defendant’s contention. The prosecuting attorney, himself, has told us that the state’s evidence in the second trial will be the same as that presented at the first trial. It is not a matter of what the scope of the notice allows. The fact is that the prosecutor, who is in a better position to know than we are, has conceded the evidence will be the same. This makes the cases virtually identical and the result reached in Ward all the more persuasive.
In Commonwealth v. Littlejohn, supra, the Pennsylvania Supreme Court held that the constitutional provisions relating to due process, equal protection and double jeopardy precluded the Commonwealth from seeking the death penalty in a second bifurcated trial against a defendant sentenced to life imprisonment in the first trial. The court found that exposing a defendant who appeals from a life sentence to a second possibility of receiving the death sentence at a new trial violates due process by conditioning the right of appeal.
“The prisoner must decide whether to abandon his constitutional right to a fair trial and serve out his prison term under an invalid or unchallenged sentence, or exercise his statutory right to appeal in order to achieve his constitutional right to a fair trial, at the risk that his second trial might result in the imposition of the death penalty. This makes the price of appeal from an erroneous judgment in a first degree murder case the risk of a man’s life. . . . ”
250 A.2d at 813-14. The court found that “this choice not only shocks the conscience and offends our sense of justice, but also rises to an unconstitutional condition” under United States v. Jackson, 390 U.S. 570, *92788 S.Ct. 1209, 20 L.Ed.2d 138 (1968).6 Id. 250 A.2d at 814.
The Pennsylvania court also found a violation of equal protection on the ground that of all defendants sentenced to life imprisonment, only those who appealed their sentences would be singled out for the possible imposition of the death penalty:
“It is our view that the equal protection clause of the fourteenth amendment also prohibits the Commonwealth from imposing the threat of the death penalty on those who have been convicted of first degree murder and sentenced to life imprisonment. . . . [I]nstead of choosing a group for sentence review on the basis of some factor which bears a rational connection with the purpose of review, this system employs a completely irrational standard for choosing those whose sentences may be changed.
“Further, ... if the Commonwealth’s purpose is to eliminate frivolous appeals, employing the deterrent of an increased sentence does not represent a rational standard. . . . The device of the threat of the death penalty does not bear any reasonable relation to the frivolousness or merits of the appeal.”
250 A.2d at 815.
In Littlejohn, the Pennsylvania court also found a violation of the double jeopardy clause under the principle enunciated in Green v. United States, 355 U.S. 184, 78 5.Ct. 221, 2 L.Ed.2d 199 (1957). In Green, the United States Supreme Court held that a defendant, who had been convicted of second degree murder and successfully had that conviction reversed, could not be tried again for first degree murder. The court reasoned that the first jury, by returning a verdict of second degree murder, had impliedly acquitted the defendant of the first degree charge. In applying Green to the bifurcated trial and circumstances presented in Littlejohn (the circumstances presented this court in the case at bar), the Pennsylvania Supreme Court held that the double jeopardy clause prevented a prosecution for the higher punishment, namely, death rather than imprisonment, once the defendant has been convicted of and received the less severe punishment. Id., 250 A.2d at 816.
In People v. Henderson, supra, the California Supreme Court held that in a bifurcated trial the prohibition against double jeopardy precluded the imposition of a death sentence upon a defendant after the reversal of the first judgment sentencing him to life imprisonment. Mr. Justice Traynor, writing for the court, reasoned that since Green v. United States, supra, established that a reversed conviction of a lesser degree of a crime precludes conviction of a higher degree on retrial, “[i]t is immaterial to the basic purpose of the constitutional provision against double jeopardy whether the legislature divides a crime into different punishments or allows the court or jury to fix different punishments for the same crime.” 35 Cal.Rptr. at 86, 386 P.2d at 686. The California court also found that the death penalty threat imposed unreasonable conditions on the right to appeal:
“A defendant’s right to appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.”
Id.
The principal opinion does not discuss the Littlejohn and Henderson cases.
In the case at bar, the principal opinion relies on Gully v. Kunzman, 592 F.2d 283 *928(6th Cir.) cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979) as authority for its statement that the fifth amendment does not forbid imposition of the death penalty on retrial of defendant for an offense upon which he was originally sentenced to life. But the Gully decision did not involve a bifurcated trial with a-second stage for determining whether the degree of guilt justified the death penalty:
“The new death penalty statute was not employed at petitioner’s first trial. Indeed, the option of sentencing petitioners to death was not even submitted to the sentencing authority at the trial. Accordingly, the fact that petitioners received only a life sentence after the first trial cannot be interpreted as ‘an implicit acquittal’ of the ‘greater’ offense created by the new death penalty law. See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).”
592 F.2d at 289 (emphásis added). Because Gully did not involve a specific jury finding that the defendant’s degree of guilt did not justify the imposition of the death penalty, the Gully case is clearly distinguishable.7 In fact, the Gully case actually supports the view that, in a bifurcated trial, the imposition of a life sentence by the jury in the second stage is for the purposes of double jeopardy analysis an implied acquittal of aggravated capital murder punishable by death:
“We do not think this analysis farfetched, since, under the new scheme, a defendant convicted of a capital offense may not be sentenced to death except upon a finding, ‘beyond a reasonable doubt,’ of certain statutorily-prescribed ‘aggravating factors.’ These ‘factors’ might be conceived of as elements of the ‘greater’ crimes of ‘capital murder/armed robbery’ rather than simply as guides for the exercise of the sentencing authority’s discretion to fix an approximate punishment for one convicted of ‘simple’ willful murder and armed robbery.”
Id. In any event, Gully is not authority for permitting the state to expose the defendant to the risk of the death penalty after a jury has implicitly acquitted him of guilt justifying the imposition of the death sentence.
As the review of the Ward, Littlejohn, Henderson and Gully cases indicates, the case at bar presents questions of due process, equal protection, and double jeopardy. I am convinced that the second exposure of this defendant to the potential of the imposition of the death penalty, after a jury in the second stage of a bifurcated trial singularly and affirmatively decided that the defendant is not to be put to death would violate the fifth and fourteenth amendments of the United States Constitution, the due process clause of the Missouri Constitution, art. I, § 10, and § 565.014.3(3), RSMo 1978.
Ill
The result reached in the principal opinion infringes upon both the right to appeal and the right to a jury trial. Moreover, this result is fundamentally unfair where, as here, the necessity of the second trial is caused by the state’s errors.
A
The Bill of Rights portion of the Missouri Constitution provides in art. I, § 14 “That *929the courts of justice shall be open to every person and certain remedy afforded for every injury to person . . . ” This section has been interpreted by this court “to protect citizens in enforcing rights recognized by law, without discrimination.” Schulte v. Missionaries of LaSalette Corporation, 352 S.W.2d 636, 641 (Mo.1961). In the case at bar, the defendant was originally convicted unconstitutionally and he succeeded in overturning his conviction. His right to a fair trial had been denied him. The principal opinion effectively holds that this defendant, and others similarly spared the death sentence by a jury in the second stage of a capital trial, must forfeit the jury’s implied acquittal of the death penalty in order to challenge an unconstitutional conviction. This result obviously discriminates against persons who attempt to enforce their rights to be free from unconstitutional convictions. This discrimination and infringement upon the right of appeal, by forcing a person unconstitutionally convicted to risk the imposition of the death sentence in order to vindicate his rights, violates Mo.Const. art. I, § 14.
B
Aside from infringing the right of appeal, the result reached under the principal opinion will chill the exercise of defendant’s right to a jury determination in the second stage of trial. This result will arise when the defendant is forced to choose whether he will exercise his right to a jury trial or settle for sentencing by the trial judge to avoid the possible imposition of the death penalty upon retrial.
In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court held that when a defendant has succeeded in obtaining a new trial, the due process clause prevents a sentencing judge from imposing a harsher sentence on the defendant if he is convicted in the second trial, absent any identifiable misconduct by the defendant between the time of the first and second trial. The Supreme Court held:
“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affimatively appear. Those reasons must • be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”
395 U.S. at 725-26, 89 S.Ct. at 2080-2081.
The general sentencing provisions of the new criminal code permit a defendant to request “in writing that the court assess the punishment in case of a finding of guilt” by the jury. § 557.036.2, RSMo 1978. If the defendant waives jury sentencing and, therefore, is sentenced instead by the judge in the event of a finding of guilt, the judge will be bound by the holding of North Carolina v. Pearce, supra. Accordingly, a defendant given life imprisonment by the jury after a capital conviction may, if he succeeds in obtaining a new trial, limit the maximum sentence in the second trial to *930life imprisonment by waiving jury sentencing in the second trial.8
As a result of the holding in the principal opinion, a defendant who obtains a new trial after being sentenced to life imprisonment in a bifurcated capital murder trial will be forced, in the second trial, to waive his right to jury trial guaranteed under the sixth amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Missouri Constitution, art. I, § 22(a), to avoid putting his life in jeopardy once again. Only if the defendant waives his right to a jury determination in the second stage of trial can he avoid being forced to run the gauntlet until the state succeeds in its efforts to take his life. Consequently, the result reached today erects the same framework impairing the right to a jury trial which was held unconstitutional in United States v. Jackson, supra.
In Jackson, the United States Supreme Court held unconstitutional the provision in the Federal Kidnapping Act, 18 U.S.C. § 1201(a), which provided that a defendant who chose to be tried by jury was subject to the death penalty, but a defendant who waived his right to a jury trial gained immunity from the death penalty. Like the defendant in Jackson, the defendant in the case at bar is subject to the death penalty if he chooses to be tried by jury in the second stage of trial, but gains immunity from the death penalty if he waives his right to jury sentencing. As in the unconstitutional framework in Jackson, under today’s decision the defendant, if “ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die.” 390 U.S. at 581, 88 S.Ct. at 1216. But the Supreme Court found this result “needlessly chill[s] the exercise of basic constitutional rights.” Id. at 582, 88 S.Ct. at 1216.
C
There is another consideration, too. It is basically unfair to permit the state, after it has failed to obtain a death sentence, and after a new trial has been awarded because of the state’s errors, to keep trying the defendant over and over for the death penalty. Even where his life is at stake, the defendant cannot match the resources of the state and sooner or later the state will prevail.
IV
The principal opinion contends that if the first jury’s decision on punishment binds any later jury, “the argument could be made that if the first jury decided on death as an appropriate sentence the second jury’s consideration would be limited to only that punishment.” While there may be surface appeal in this proposition, the argument ignores long-standing constitutional principles. In United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896), the United States Supreme Court unequivocally stated that a “verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution.” And in Green v. United States, supra, the Supreme Court made clear that an implied verdict of acquittal of a greater offense, as when the jury convicts the defendant of a lesser offense, enjoys the same finality and insulation from review as an outright acquittal. In the case at bar, the court is presented with the jury’s implied acquittal of capital murder with the death penalty, as the jury refused to find in the second stage of trial that the state’s proffered aggravating circumstances justified putting the defendant to death.
The Missouri capital murder statutes require that the jury pass on whether defendant is to be found guilty of capital murder with the death penalty or capital murder with life imprisonment without eligibility for probation or parole for fifty years. Once the issue is decided in the defendant’s *931favor, whether by an outright acquittal as in United States v. Ball, supra, or by an implied acquittal as in Green v. United States, supra, the dispute as to the question is ended “then and there.” See United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971). “[Tjhere is no exception permitting retrial once the defendant has been acquitted, no matter how ‘egregiously erroneous,’ . . . the legal rulings leading to that judgment might be.” Sanabria v. United States, 437 U.S. 54, 75, 98 S.Ct. 2170, 2184, 57 L.Ed.2d 43 (1978). In Green, the Supreme Court flatly rejected the government’s contention that the defendant “must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced ...” 355 U.S. at 193-94, 78 S.Ct. at 226-227.
In any event, it would not be sound for the court to decide the actual issues presented in this case on the basis of speculation as to the result we would reach in a hypothetical case. The principal opinion has postulated a nonexistent contingency— that of a case where defendant was given death — different from the facts before us, the legal questions of which nonexistent case have neither been briefed nor argued. If this anticipated issue were to arise, this court may decide the case after the issue is timely briefed and argued. I would decide the question when it arises; it is not an issue in this case.
V
Although the principal opinion states at the outset that the “principal question for our determination is whether on retrial the death penalty ... is barred as possible punishment by constitutional or statutory considerations” 9 and concludes that the trial court would be exceeding its authority in denying the state leave to seek imposition of the death penalty on retrial and hence prohibition lies, the opinion also addresses the constitutionality of the death penalty. That point is not raised in relator’s original brief in any way. Counsel for respondent in his brief predicts that the death penalty will in due course be held unconstitutional, but that they will “say no more here than enough to make the point, in order to preserve it for appeal” (obviously referring to the appeal which may come after the retrial of the capital murder case), and then argues that § 565.012.2(7), RSMo 1978, one of the statutory aggravating circumstances proffered by the state in its effort to impose the death penalty on defendant, is unduly broad and vague. Relator, then, in his reply brief “suggests that the instant proceeding is not the proper time to consider this particular issue. Whether the statute is overly broad can be better determined when the Court has a case on appeal with a full transcript of the proceedings to assist it.” Neither side purports to have briefed or argued these last two constitutional questions thoroughly or adequately.
The present action is in prohibition and once the question of whether the trial judge will exceed his jurisdiction if he goes through with his intention to sustain defendant’s motion to strike is determined, the prohibition action is settled. Clearly respondent is not contemplating making that order for the reason he considers the death penalty unconstitutional, because he permitted the death penalty issue to be tried in the first trial. Respondent is contemplating making the order for the reason that defendant was subjected to the death penalty in the first trial, but the jury rejected it, and hence defendant cannot be subjected to it again in thé second trial, respondent believes. To go further and *932reach out to decide the constitutionality of the death penalty under art. I, § 21 of the Missouri Constitution , is to violate our long established rule that we abstain from passing on constitutional questions which are unnecessary to a disposition of the case. See the many cases so holding collected in 7 West’s Missouri Digest, Constitutional Law, ®=46(1).
I would await a case where the death penalty is squarely before us on direct appeal, with adequate briefing and argument, to pass on its constitutionality. We should not casually foreclose a question of this magnitude.
Additionally, the questions of whether the statutory aggravating circumstances are unconstitutional as unduly broad and vague, and whether the death penalty would be unconstitutional as cruel and unusual punishment if applied to this defendant are questions not ripe for adjudication, as this defendant has yet to stand trial, and we do not know what the outcome of the second trial may be. Defendant may not receive the death penalty in a second trial, even if the present case goes against him, nor do we know what evidence defendant may offer as to the cruel and unusual aspects of the death penalty. These are all questions properly addressed on appeal. “[Pjrohibition cannot be substituted for an appeal.” State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo. banc 1974). I would quash the preliminary rule.
. The Missouri Approved Criminal Instruction submitted to the jury for this finding, MAI-CR 15.40 “Guilty of Capital Murder: Statutory Aggravating Circumstance — Finding Required for Death Penalty,” with the two aggravating circumstances proffered by the prosecuting attorney would have read as follows:
“In determining the punishment to be assessed (under Count_) against the defend-
ant for the murder of [name of victim ], you must first unanimously determine “Whether the defendant has a substantial history of serious assaultive convictions.
“Whether the murder of [name of victim ] involved torture or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman.
“You are further instructed that the burden rests upon the state to prove beyond a reasonable doubt at least one of the foregoing circumstances, and that it is an aggravating circumstance. The defendant is not required to prove or disprove anything.
“Therefore, if you do not unanimously find from the evidence beyond a reasonable doubt that at least one of the foregoing circumstances exists and that it is an aggravating circumstance, you must return a verdict fixing the punishment of the defendant at imprisonment for life by the Division of Corrections without eligibility for probation or parole until he has served a minimum of fifty years of his sentence.”
. The statement in the principal opinion that it is speculative as to what the state’s evidence on aggravation will be on retrial is contradicted by the statements of the prosecuting attorney who will again try the case for the state. There is no reason why we should doubt the prosecutor’s knowledge of his case.
. Even a cursory glance at the Missouri Approved Criminal Instructions for the second stage in capital murder trials, after a jury has already convicted the defendant, indicates that a jury determination to impose a life sentence is an implied acquittal of the aggravated capital murder which would justify the imposition of the death penalty. The “Supplemental Notes on Use Applicable to the 15.00 Series of MAI-CR” (for homicides committed after May 25, 1977) requires the reading of: MAI-CR 15.30, 15.32 and 15.34 in the opening of the second stage before the presentation of evidence; MAI-CR 15.36 after the presentation of evidence and before argument; and, MAI-CR 15.-38, 15.40, 15.42, 15.44, 15.46 and 15.48 after argument. Finally, a special verdict form, MAI-CR 15.56.2, is presented to the jury for its determination of the question.
. The instruction can be reworded slightly to cover the situation where there are several aggravating circumstances submitted, at least one of which must be found.
. In Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976), the Supreme Court held, among other things, that the imposition of the death penalty cannot be disproportionate in relation to the crime for which it is imposed.
. In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Supreme Court held invalid as an unconstitutional condition a provision in the Federal Kidnapping Act, 18 U.S.C. § 1201(a), which provided that a defendant who chose to be tried by a jury was subject to the death penalty, but a defendant who waived his right to a jury trial gained immunity from the death sentence.
. For the same reason, the principal opinion places undue reliance on Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) and Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (a robbery conviction that did not involve the imposition of the death penalty, both cases involving only single stage trials).
The principal opinion contends that Chaffin, despite the fact it involved only a single stage trial, nevertheless supports the proposition that the state may again seek the death penalty when defendant is tried before the second jury in the case before us, pointing out that Chaffin said that “bifurcation alone would not wipe away the fundamental differences between jury and judicial sentencing.”
There was no bifurcated trial in Chaffin and the Chaffin opinion does not purport to deal with the problems which are raised by the instant case, tried as it was under our system of instructions which focus the jury upon a single issue in the second stage proceedings, as discussed earlier herein.
. This strategy forces the defendant to run the risk, however, that if the jury in the second trial finds the defendant guilty of a non-capital offense, the judge may impose a harsher sentence than the jury would have imposed on him.
. It is important to bear in mind that the constitutional issue referred to is not the constitutionality of the death penalty, but whether it is constitutional to subject defendant to the death penalty on retrial after the jury in the first trial had rejected the death penalty and given the defendant life imprisonment.