concurring in part and dissenting in part.
I concur in result as to affirmance of the conviction for capital murder, but respectfully dissent as to the affirmance of the death penalty, for the reasons set forth below.
I
Defendant was found guilty by a jury of capital murder and sentenced to death. When the death penalty is imposed, this court has a three-fold duty: 1) we must review the guilt or innocence stage of the bifurcated trial for error; 2) we must review the sentencing stage of the trial for error; and 3) we must review independently the appropriateness of the death penalty for this particular defendant and for this particular crime. In performing the first two duties, this court acts as an appellate court, i.e., it reviews the record for assignments of error. The third duty, however, is an affirmative one, which is set out in § 565.014.3, RSMo 1978.1 This third duty requires us to examine the whole record to determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
*624(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in § 565.012; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
This review is essential because, once the sentence is executed, there is no opportunity to correct it. Because I conclude that the sentence of death in this case is “excessive or disproportionate to the penalty imposed in similar cases,” and that the sentence “was imposed under the influence of” passion, prejudice and other arbitrary factors, either of which is sufficient to require reversal of the death penalty, I would affirm the conviction for capital murder and reverse and remand the cause for resen-tencing. Section 565.014.5(2).
II
The United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), found the challenged death penalty statutes violated the eighth amendment’s guarantee against cruel and unusual punishment because the statutes were applied in a discriminatory and arbitrary manner. Id. at 249, 92 S.Ct. at 2731 (Douglas, J., concurring). Justice Stewart in Furman stated that “[tjhese death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [capital crimes], many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.” Id. at 309—10, 92 S.Ct. at 2762 (Stewart, J., .concurring). In response to Furman, Missouri, along with many other jurisdictions, adopted new legislation to insure that the jury would be given proper direction so that the death penalty would not be imposed in an arbitrary and capricious manner. State v. Royal, 610 S.W.2d 946, 950 (Mo. banc 1981). Under our statutes, a defendant charged with capital murder is tried in a bifurcated trial. Section 565.006.1, RSMo Supp.1981. The first stage involves determination of guilt; the second stage involves determination of punishment. To impose death as the punishment, the trier of fact must find beyond a reasonable doubt one of twelve statutory aggravating circumstances. Section 565.012.2, RSMo 1978 and Supp.1981 (the 1978 version, applicable to this case, lists only ten aggravating circumstances).
The jury found defendant Newlon guilty of the capital murder of Mansfield Dave. It is true that the jury could have found the facts as set forth on page 3 of the principal opinion as to defendant and Franz Williams entering the store together, with defendant wielding the shotgun and doing the shooting, but it is incorrect to leave the impression that the verdict of guilty means that the jury found the facts as above. On the contrary, as will be developed below, the jury could have found that the defendant, instead of being the principal, was an accomplice of Franz Williams, and that Williams did the shooting, while defendant was at the back of the store getting a soda to divert the victim’s attention. Because the verdict directing instruction required only that the jury find either “the defendant or another” killed Mr. Dave, there is no way to determine which of the two versions the jury found as the fact. Indeed, the principal opinion points out that instruction no. 9 submitted appellant’s guilt of capital murder “as an accessory” and that the instruction requires either that 1) defendant did the killing, or 2) aided one who did.2
*625To return to the facts: The prosecutor was faced with a problem, because his only eyewitness supporting the theory that defendant fired the shots was Walter West and there were formidable credibility problems with the jury as to West. West, who had five prior convictions according to the prosecutor, was also in on the plot to rob and kill Mr. Dave and served as lookout and driver of the getaway car. He made a deal with the state whereby he was permitted to plead guilty to second degree murder and received a sentence of only ten years, which was to be served outside the state.3
West testified he was in an automobile, parked across the street, some forty five yards from the store front (actual measurement 157 feet). It was dark, 10:30 p. m., and the store level was five feet below the parking lot level, down two short flights of steps. The photographs which were put in evidence by the state, Exhibits 1, 2, 3 and 14, purporting to show the general area and the location of the store, would raise a question by any viewer as to whether West was in a position to see all that he testified to, although, of course, this was a question for the jury. The prosecutor many times in his jury argument sought to bolster West’s credibility. He insisted that the physical evidence did not disprove West’s testimony and he undertook to explain away the discrepancies between West’s deposition and his trial testimony. He repeatedly urged the jury not to disregard West’s testimony.
Defense counsel, as would be expected, strongly attacked West’s credibility and argued the physical facts belied West’s testimony as to what he claimed to see from across the street.
The principal opinion devotes an entire page to the attacks made on West’s credibility.
However, the prosecutor wanted to be sure that the jury knew that they could convict defendant of capital murder even if they did not believe the witness West and did not believe that Newlon personally killed Mr. Dave. To that end, the state introduced defendant’s videotaped confession. In this statement, defendant admitted that he helped saw off the shotgun; that he knew Franz Williams intended to get money from the man; that Williams said he (Williams) might have “to shoot him because he knows me”; that defendant was sent to the back of the store to get a soda to divert Mr. Dave’s attention; that defendant was at the back of the store when he heard the two shots; that Franz Williams had the shotgun, which he concealed under his coat when they got out of the car; and that Williams was the triggerman.4 Under this statement, of course, defendant would be guilty of capital murder as an accomplice, which the prosecutor recognized, submitted to the jury in the main instruction, and argued.
In his argument to the jury in the guilt phase of the case, the prosecutor on at least seven occasions stressed the voluntary character of defendant’s confession and emphasized that, even if West were not to be believed, the defendant by his own statement was still guilty of capital murder as an accomplice of Williams. For example: “I hope you’re not going to disregard his confession . . . Rayfield was involved up to his neck.” “[H]e didn’t know when he gave that videotape statement, that he said more than enough to convict him and convict himself of capital murder.” “Either Franz Williams killed him and Rayfield was in the *626back of the store — which he said in the videotape, or Rayfield Newlon did the killing and Franz Williams was in the back of the store? Which is what?” “If you don’t believe Walter West, we still have the videotape confession, wherein the man admits to two good police officers after he voluntarily surrenders . . . and he thought he had just admitted to a robbery, but not a murder.” And finally, just before bringing his final argument to a close, “but even if you disregard everything Walter said . . . but regardless you got the videotape confession where he admits he was involved in the robbery and all through this confession he remarks that he knew a robbery was going to occur and involving a sawed-off shotgun, and that shotgun was pulled out before they went in the store and Franz said he might have to kill him.”
As said earlier, the instruction on capital murder was in the disjunctive. It required only the jury find either “the defendant or another” killed Mr. Dave. To reach its verdict, the jury could have found that either Franz Williams or Rayfield Newlon shot and killed Mansfield Dave with two blasts of a shotgun during the course of a robbery. The jury could have found that the accomplices realized before entering the Conveniency House that they might need to kill Dave to prevent identification and thus had the requisite mental state. The jury could have believed defendant’s videotaped statement, a copy of which they requested and received during deliberations, and disbelieved Walter West’s testimony and still found defendant guilty under the instructions and principles of accomplice liability.5 From the verdict it is impossible to determine whether the jury believed defendant to be guilty as a principal or as an accomplice. It therefore cannot be assumed, as the principal opinion does, that defendant was the triggerman. This is important because it bears directly on the question of whether the death sentence is disproportionate compared to similar cases considering both the defendant and the crime. The principal opinion does not attempt to justify the death penalty for defendant if he were guilty of capital murder as an accomplice.
Ill
Neither the state nor the defendant presented further evidence in the punishment stage of the trial, but both counsel argued to the jury. The state argued and submitted two aggravating circumstances to the jury: 1) “Whether the defendant murdered Mansfield Dave for the purpose of receiving money or any other thing of monetary value”; and 2) “Whether the murder of Mansfield Dave involved depravity of mind and that as a result thereof it was outrageously or wantonly horrible or inhuman.” The jury, in sentencing the defendant to death, found only the latter aggravating circumstance — “the murder of Mansfield Dave involved depravity of mind and that as a result thereof it was outrageously or wantonly horrible or inhuman.” During its deliberations, the jury requested a definition of “depravity of mind.” This request was denied.
Section 565.012.2(7) allows the jury to impose the death penalty if it finds that “[t]he offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind.” This aggravating circumstance requires a subjective, rather than an objective, finding by the jury. Theoretically, a jury could find that every intentional, deliberated murder involves “depravity of mind.”
An aggravating circumstance similar to § 565.012.2(7) is found in the death penalty statutes of several states. The Georgia version, which authorizes imposition of the death penalty if “the murder was ‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim’ ”, Ga.Code Ann. § 27-2534.1(b)(7) *627(1978), was challenged in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) as being so broad that it would authorize imposition of the death penalty in every murder case. Id. at 201, 96 S.Ct. at 2938. In response, the United States Supreme Court stated that “[i]t is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.” Id. Gregg was followed by Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) where the petitioner’s death sentence based on § 27-2534.1(b)(7) was reversed because “[t]here is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.” Godfrey v. Georgia, 446 U.S. at 433, 100 S.Ct. at 1767. The Georgia court, construing § 27 — 2534.1(b)(7) so that it would not become a “catch-all”, stated that:
Under the plain meaning of the statute, not only must the murder be outrageously or wantonly vile, horrible or inhuman, but in addition, the facts of the case must show either an aggravated battery to the victim, torture of the victim, or depravity of mind of the defendant as hereinafter explained.
Hance v. State, 245 Ga. 856, 268 S.E.2d 339, 345, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 611 (1980). Both the principal opinion and State v. Mercer, 618 S.W.2d 1, 5 (Mo. banc 1981) emphasize that our death penalty statute is patterned after the Georgia statute.
This court, too, must construe this aggravating circumstance in such a way that the death penalty is not authorized for every intentional murder. It must insure that there is a principled way to distinguish between cases where the death penalty is or is not imposed. To make its proportionality review as required by statute, § 565.014.-3(3), this court must look at “the penalty imposed in similar cases, considering both the crime and the defendant.” (Emphasis added.) This court should look at sentencing patterns in similar cases. See Blake v. Zant, 513 F.Supp. 772 (S.D.Ga.1981).
To begin, we cannot be sure whether defendant or Franz Williams actually did the shooting. There is no way to tell under the evidence, the instructions, and the verdict. Certainly if defendant were only the accomplice and not the triggerman, there is not a single Missouri capital murder case (and the principal opinion makes no effort to cite one) which can be said to be similar where the death penalty was assessed against the accomplice or which would justify our upholding the death penalty here. The alternative that defendant was found guilty of capital murder as an accomplice is not considered or discussed in part VI of the principal opinion, the proportionality review. The sole basis on which the principal opinion affirms the death penalty is on the premise that Newlon actually killed the victim. I am certain if defendant were only the accomplice, the justification of the principal opinion for upholding the death penalty, at 622, based as it is on a recital of events supposed to have been performed by defendant as the triggerman, must fail.
I do not mean to say, or to be interpreted as saying, that an accomplice in a capital murder could never justifiably receive a death sentence. In the case before us, however, the justification for the death sentence is found by the principal opinion in the acts committed solely by the person who did the shooting: the firing of the first shotgun blast without warning or provocation and then reloading, leaning over the counter and firing the second blast while the victim lay bleeding on the floor, followed by starting to load the gun again. While this was going on, the accomplice, who was either defendant or Williams, was at the rear of the store, getting a bottle of soda pop. There is no evidence that the accomplice had any hand in the way the actual killing was done, that it was planned between them to be done that way, or that the accomplice should have become aware that the principal was going to do it that way. As the principal opinion says, it was not necessary to do what was done in order *628to accomplish the robbery. It is the way the killing itself was done which is the justification found by the principal opinion for the death sentence. Under the facts and circumstances before us, the manner of killing cannot fairly be imputed to the accomplice as a basis for sentencing him to death also.
We also point out that the aggravating circumstance submitted by instruction 19 and found by the jury does not require that the jury make any determination as to whether defendant was the triggerman or the accomplice. The question posed to the jury by instruction 19 was “Whether the murder of Mansfield Dave involved depravity of mind and that as a result thereof it was outrageously or wantonly horrible or inhuman”. This inquiry focuses on the act of murder itself, not on who was the murderer. The jury could believe the murder involved depravity of mind and was outrageously or wantonly horrible or inhuman without being required to determine whether it was defendant’s “depravity of mind.” The portion of the verdict specifying the aggravating circumstance found reads as follows:
[W]e designate the following aggravating circumstance or circumstances which we find beyond a reasonable doubt:
Whether the murder of Mansfield Dave involved depravity of mind and that as a result thereof it was outrageously or wantonly horrible or inhuman.
This verdict does not resolve the question of whether defendant or Franz Williams committed the acts upon which the principal opinion rests its justification of the death penalty.
However, even if we assume, as does the principal opinion, that defendant fired the shots (something which we cannot assume under the instructions and verdict), the death penalty is disproportionate to the penalty imposed in similar or worse cases.
The prosecutor and the principal opinion characterize this murder as an “execution-type” killing. However, it is the facts of the respective homicides which we must examine, not the catch phrase applied to them, because under our statute we are to examine proportionality of the sentence imposed to that imposed in similar cases. How do the facts of the killing of Mr. Dave and the punishment assessed against this defendant compare with the facts and punishment assessed in other cases where the defendant was convicted of capital murder?
The principal opinion cites cases it has compared with the instant case in determining that the death sentence is not disproportionate when applied to defendant Newlon for this particular crime compared to the penalty imposed in similar cases. In other words, it has made an attempt to distinguish cases on the assumption that defendant did the actual killing. State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981), is the first case cited. In Mitchell, the defendant was found guilty of two counts of capital murder committed during the course of a robbery of a liquor store. Both victims had been stabbed, one six to eight times and the other approximately twelve times. Both victims also had severe blows to the head. The jury was instructed on four aggravating circumstances, including “the offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind.” Because the jury was unable to agree on punishment, the defendant was sentenced to life imprisonment without chance of probation or parole for fifty years. Section 565.008.1.
A second case cited is State v. Royal, 610 S.W.2d 946 (Mo. banc 1981). In Royal, the defendant during the robbery of a bank abducted an employee, took her to a remote area in the county, and killed her. The victim had been shot three times with a .22 caliber gun. The jury, after being instructed on three aggravating circumstances, including § 565.012.2(7), recommended a life sentence.
A third case cited is State v. Downs, 593 S.W.2d 535 (Mo.1981). In Downs, the defendant was convicted of three counts of capital murder. Downs and two co-defendants entered a store to rob it. The husband and wife, owners of the store, were shot in the head. Their daughter, returning home *629from school, was pulled into the building and shot despite her pleas for mercy. The jury, instructed on three aggravating circumstances, including § 565.012.2(7), recommended a life sentence. Downs was identified as the triggerman by one of his accomplices.
I cannot find a principled means to distinguish between the three cases cited which are similar factually and the instant case which would justify sentencing Rayfield Newlon to death, yet justify sentencing defendants Mitchell, Royal, and Downs to life imprisonment. In fact, looked at objectively, the murders in the cited cases were more “vile” and the murderers exhibited a greater “depravity of mind.” In Mitchell, there were two victims, both killed by multiple blows and stab wounds. In Royal, the victim was kidnapped and driven to a remote rural area, a ride which must have become increasingly terrifying and ominous, prior to being shot three times. In Downs, there were three victims. In the instant case, there was one victim, killed by two shotgun blasts. In addition, there is no way to know whether Newlon was the triggerman or whether he was an accomplice.
A fourth case cited is State v. Williams, 611 S.W.2d 26 (Mo. banc 1981). In Williams, the defendant, after repeated efforts had successfully solicited an acquaintance to kill her husband. The jury recommended life imprisonment. The only similarities to Newlon are that someone was killed, the defendant was convicted of capital murder, and the death penalty was sought, unless, of course Newlon was an accomplice. If so, I cannot see how the depravity of mind of Mrs. Williams as an accomplice in arranging for the paid murder of her husband was any less reprehensible than Newlon’s as the accomplice of Franz Williams, yet she received only life imprisonment.
The fifth case cited is State v. Mercer, 618 S.W.2d 1 (Mo. banc 1981). In Mercer, the defendant was convicted of capital murder. The victim was sexually abused by the defendant and others for an extended period of time and then strangled. Witness Campbell testified that he “found defendant straddling Karen’s body with his hands on her throat. Defendant screamed at Campbell to take her pulse. Campbell grabbed the arm of Karen’s seemingly lifeless body and found a faint pulse. At the time he told defendant this, he could smell human waste which was all over the bed. Defendant ‘hollered,’ struck the left side of Karen’s head, and said, ‘Die you bitch .... This is a leaky cunt. Die.’ He continued strangling her, and again screamed at Campbell to take her pulse. Campbell found no pulse. When Campbell reported this, defendant got off the bed, grabbed Karen’s legs, and pulled her off the bed. Defendant took the sheets and blankets to the washing machine and told Campbell to wipe the waste off the floor.” Id. at 4. The jury, instructed on two aggravating circumstances, including § 565.012.2(7), returned the death penalty, which this court affirmed. The shooting of victim Dave by means of two shotgun shells during the course of an attempted robbery does not begin to equal the moral depravity exhibited by the defendant in Mercer, shown by the atrocities inflicted on his victim and set out above.
To achieve true proportionality review, we need to examine capital murder cases other than the few mentioned in the principal opinion and discussed above. Cf. Ross v. State, 233 Ga. 361, 211 S.E.2d 356, 359 (1974), cert. denied, 429 U.S. 873, 97 S.Ct. 190, 50 L.Ed.2d 154 (1976) (as earlier pointed out, our death penalty statute is patterned after Georgia’s and has the same provisions as to independent review of the death penalty, including determination of proportionality of the death sentence) where the court stated “that nothing in the statute forecloses this court during the course of its independent review from examining non-appealed cases and cases in which the defendant pleaded guilty to a lesser offense.” Even if we go no further in Missouri than to examine only cases we have heard on appeal and affirmed, we should include such cases as State v. Bostic, 625 S.W.2d 128 (Mo.1981); State v. Baskerville, 616 S.W.2d 839 (Mo.1981); State v. Holmes, 609 S.W.2d 132 (Mo. banc 1981); *630State v. Strickland, 609 S.W.2d 392 (Mo. banc 1980); State v. Ingram, 607 S.W.2d 438 (Mo.1980); State v. Hudgins, 612 S.W.2d 769 (Mo.1981); State v. White, 621 S.W.2d 287 (Mo.1981); State v. Jensen, 621 S.W.2d 263 (Mo.1981); State v. Chandler, 605 S.W.2d 100 (Mo. banc 1980); and State v. Borden, 605 S.W.2d 88 (Mo. banc 1980). Otherwise, as set forth in Godfrey v. Georgia, supra, as the law is built up in this area, there is no way to distinguish a capital murder case in which the death penalty is imposed from the many cases in which it was not. We must establish standards for imposition of the death penalty to “serve both goals of measured, consistent application and fairness to the accused.” Eddings v. Oklahoma, - U.S. - at -, 102 S.Ct. 869 at 874, 71 L.Ed.2d 1 (1982).
In Bostic, defendant struck the victim on the head twice, then he and his son dragged her down the alley and loaded her in a van. The defendant stepped on the victim’s throat when she regained consciousness. At some time defendant had sexual intercourse with the victim. The body was left in a ditch outside of town. The jury, instructed on the depravity of mind aggravating circumstance, recommended a life sentence.
In Baskerville, the defendant was convicted of three counts of capital murder. One victim was shot twice, one was shot once, and a third, a child who begged for his life, was shot once. The jury imposed the life penalty without possibility of parole for fifty years for the capital murders of the two adults and, because the jury was unable to agree upon punishment for the capital murder of the child, the court assessed a life sentence, without possibility of parole for fifty years.
In Holmes, defendant stabbed his sixteen year old victim at least sixty-four times with an ice pick like instrument, an example of extreme torture and cruel death. It is hard to imagine a worse death for a teenager. Defendant had twice announced his intention to kill the victim, even saying that he was going to do it by stabbing the victim with an ice pick some sixty odd times. Because the state had waived the death penalty, Holmes was sentenced to life imprisonment.
In Strickland, defendant was convicted of one count of capital murder and two counts of second degree murder. The victims were tied and then shot with a pistol and a shotgun. Three were killed and one wounded. The defendant and two or three others had intruded upon a party and also ransacked the house. The state waived the death penalty after the guilty verdict.
In Ingram, defendant shot and killed a casual acquaintance as he, the victim and their two consorts were driving around Bull Shoals Lake. All had been drinking beer. An argument ensued between defendant and the victim, who was driving. Defendant said he would use the shotgun on the victim if the latter did not stop the car and let him out. The victim in effect said to go ahead, “if you’ve got the guts”, whereupon defendant shot the victim in the head with a sixteen gauge shotgun. The state waived the death penalty.
In Hudgins, defendant’s landlord died from loss of blood after he stabbed her twenty-one times as well as strangling her. Some of the wounds were seven inches deep. Defendant then strangled her six year old son with an extension cord and placed the body in a bathtub filled with water. He was found guilty by a jury of capital murder, but sentenced only to life imprisonment without parole for fifty years. He was also convicted of second degree murder.
In White, defendant agreed to commit murder for hire. He made an unsuccessful attempt wherein he shot the victim and beat her with a lead pipe. After the victim recuperated, defendant entered her home, bound and sexually ravished her and then killed her by cutting her throat from ear to ear and the back of her neck, nearly severing her head from her body. Defendant was convicted of capital murder and the jury assessed life imprisonment without parole for fifty years.
In Jensen, defendant robbed the safe in the restaurant where he worked. He then *631proceeded to ransack the premises to make it appear a burglary had occurred but was surprised by the arrival of the manager. After an unavailing attempt to dissuade the manager from calling the police, defendant shot and killed her. He was convicted of capital murder and the jury assessed punishment at life without possibility of parole for fifty years.
In Chandler, defendant was convicted of capital murder. The jury assessed life imprisonment without parole for fifty years. The facts were that he and two others went to the law office of the victim at night. Defendant held a gun on the victim and took his money. Then, rather than shooting the victim and possibly attracting the attention of outsiders, defendant first stabbed the victim in the stomach (to get defendant’s hands away from protecting his throat) and then while the victim was imploring God not to let the man kill him, defendant deliberately cut the victim’s throat.
In Borden, defendant wife, after failing over a period of several months to induce the man with whom she was having an affair to do the job, executed her husband by shooting him with a sawed-off .22 caliber rifle while he was watching television. Their two children were also present in the house. Defendant had her paramour strike her and tie up the children in an attempt to divert suspicion. Defendant was convicted of capital murder and the jury fixed the punishment at life imprisonment without possibility of parole for fifty years.
The capital murdera in the ten cases just described constitute a veritable “chamber of horrors”. The instant case falls far short of these capital murders (many of which involved multiple victims) in terms of torture, duration of the victim’s suffering, nature of the wounds, agony, or infliction of pain and suffering. Yet in not one was the death penalty assessed. Where is the proportionality or the consistency or the principled manner by which we can declare that the sentence of death in the case before us is not excessive or disproportionate when compared to the penalty imposed in the above cases, all of which involved depravity and conduct outrageously or wantonly horrible or inhuman? How do we distinguish in a principled way this case, where the death penalty is based on the aggravated circumstance that the murder “involved depravity of mind and that as a result thereof it was outrageously or wantonly horrible or inhuman”, from those above? Is the Mitchell case, or Royal, or Downs, or Williams, or Bostic, or Baskerville, or Holmes or Strickland or Ingram or Hudgins or White or Jensen or Chandler or Borden any less depraved or less outrageously or wantonly horrible or inhuman than the present case? That question cannot be answered affirmatively, in my opinion.
As the Supreme Court of the state, we are obliged by law to examine the sentence of death to make sure that it is not excessive or disproportionate to the penalty imposed in similar cases. This the jury is not required or able to do. If Newlon’s death sentence is affirmed, he is being marked for death capriciously, one randomly selected from a group of capital murderers whose crimes are of equal or greater depravity than his. We will thereby permit the jury verdict to accomplish what our death penalty review is supposed to avoid — application of the death penalty in an arbitrary and capricious manner — contrary to the mandate of our statute and the decisions of the United States Supreme Court. The Supreme Court in Eddings v. Oklahoma, supra, reaffirmed this mandate, stating that the decisions of the Court reflect “the Court’s insistence that capital punishment be imposed fairly, and with reasonable consistency or not at all.” 102 S.Ct. at 875.
The court in State v. Culberth, 390 So.2d 847 (La.1980) reversed the defendant’s death sentence and remanded for resentenc-ing. Defendant was found guilty of killing a young woman. The state asserted that “the infliction of five stab wounds on the helpless victim constituted an especially heinous, atrocious or cruel manner of killing.” Id. at 850. The court, in holding that the evidence did not support submission of this circumstance, stated:
*632Obviously, it was not intended that all murders fall in this category, even though it can be said that murder, itself, is a heinous, atrocious and cruel crime. We have stated that the concept of heinousness must necessarily include “some idea of torture or the pitiless infliction of unnecessary pain on the victim.” State v. English, [367 So.2d] [815] at 823 [ (La.1979) ]. Such a construction is necessary to protect the statute from attack on grounds of vagueness and overbreadth and to provide adequate guidelines for those involved in the sentencing process. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In this case the defendant did not torture or abuse the victim before her death. The wounds were inflicted to kill, not to maim or to inflict pain.
Id. at 851.
Whether we conclude the evidence does not support imposition of the death penalty or that the sentence is disproportionate for the crime, the death penalty cannot be imposed. As in Culberth, this was a killing with intent to kill, not with intent to maim or wound. This is recognized by the prosecutor in closing argument when he argued that Newlon shot Mr. Dave a second time “to make sure nobody would live to identify him in the Courtroom.” The principal opinion speculates the second shot fired was to mutilate the corpse, but there is no evidence to support this, nor was any such theory advanced by the prosecutor to the jury. If the killer were truly motivated by a desire to mutilate, he would have fired the second shot into the deceased’s head and face, not his shoulder.
“The instantaneous death of a victim as a result of being killed by a gunshot, although the scene of death be gruesome (no other facts appearing), does not constitute torture, aggravated battery or depravity of mind.” Hance v. State, supra, 268 S.E.2d at 346. In this case, there were “no other facts appearing”, other than the characterization by the prosecutor and principal opinion that this was an “execution-style killing.” The sawed-off shotgun was, most definitely, a lethal weapon, but it is a weapon used to kill, not to torture. Its use results in a bloody, gruesome scene as shown by the photographs entered into evidence by the state (Exhibits 7, 8, and 9). This does not, however, reflect “depravity of mind” any more than the use of any other weapon. The principal opinion would supply “other facts” by pointing out that this was a single action shotgun and thus required reloading. The gun is a simple self-ejecting weapon, easy to load, and would require, at the most, a few seconds to fire and reload.
The principal opinion relies on Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980) to support its position that the death penalty is appropriate in this case. In Turner, the jury found both statutory “[conditions for imposition of death sentence”: 1) “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society” or 2) “that his conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.” Va.Code § 192-264.2 (Supp.1981). I am unable to agree with the principal opinion that the facts in Turner are “strikingly similar to these before us.” Turner, during the course of a robbery, held four people hostage, (including a police officer) in the store for a short period of time. He shot the owner in- the head, wounding him but not fatally, and then talked to one of the hostages. Two of the hostages escaped after which Turner told the officer that he was going to kill the owner because he had set off an alarm. Turner then fired two shots at the owner which were fatal. Additionally, Turner had a history of violent crime.6 He had been convicted of malicious maiming, escape, unlawful wounding, malicious wounding, and second degree murder. Id. 273 S.E.2d at 44, n.11. The defendant argued that the evidence did not support the *633“vileness” condition. In response, the court stated that the initial wound to the head, which was not the cause of death, was an aggravated battery. But, it added, that “[e]ven if Turner’s crime did not meet the ‘vileness’ standard, imposition of the death penalty would be permissible under the ‘dangerousness’ standard.” Id. at 45. The court pointed out that defendant’s criminal record “is one of the most extensive we have reviewed” under this provision of the statute. Id. at 47. This case is clearly distinguishable: 1) the jury found two statutory aggravating circumstances; 2) the defendant in Turner had a history of violent crime which Newlon did not; and 3) the opinion relies mainly on the “dangerousness” aggravating circumstance, which is not the aggravating circumstance relied upon here.
IV
In addition, I would reverse the death sentence and remand for resentencing because the sentence of death was imposed under the influence of passion, prejudice, and other arbitrary factors, § 565.014.3(1), generated in the minds of the jurors by the improper and provocative words of the prosecutor. I must conclude that the prosecutor overstepped all bounds of permissible argument by injecting appeals to the passions and prejudices of the jurors and appeals for return of the death sentence for reasons foreign to the clear mandate of our death penalty statute that death can properly be assessed only if there is a sufficient aggravating circumstance or circumstances and for no other reason. Section 565.012. In so doing, the prosecutor violated the ABA Standards for Criminal Justice, Standards 3-5.8(c) and (d) which state:
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law.
As was stated in United States v. Sanders, 547 F.2d 1037, 1043 (8th Cir. 1976), “Prosecutors may strike hard blows but not foul ones.”
Most, if not all, of the arguments set forth, infra were not objected to. Our duty, however, under § 565.014, is to determine whether the death sentence was imposed under the influence of “passion, prejudice, or other arbitrary factor.” The absence of an objection does not relieve us of the affirmative duty to make our own independent appraisal, nor does the mere absence of an objection change the nature of what was said and its effect upon the jury. The remarks of the prosecutor to which I refer below were not casual remarks. They were made to make an imprint on the jury, to obtain a death verdict for the reasons advanced. We should not permit a death verdict to stand where illegitimate argument formed a major part of the prosecutor’s appeal to the jury.
First, the prosecutor argued that the jury should impose the death penalty because it had not been imposed previously under our present death penalty statute, clearly a non-statutory ground and constituting no legitimate reason why this defendant should be singled out. This argument focuses on making use of the death penalty just because it has not yet been used, not on its appropriateness for Rayfield Newlon.
Do you know how many people are on death row in this State? None. We’ve got the death penalty, but how many are there? None. Mr. Newlon will be the first one, if you put him on death row.
Second, the prosecutor appealed to the jury’s sense of not wanting to seem “gutless” by asking them to return the death penalty to demonstrate they had the courage to do so. This is not a justifiable reason for sentencing defendant to death.
As sure as he sits there, he doesn’t think you have the guts to do it.
******
Once again, I hope you have the courage to do that [return the death penalty] because it’s tough.
*634Third, the prosecutor misstated the law by arguing that the death penalty was appropriate solely because the defendant had been convicted of capital murder; that because he had killed someone he deserved in return to die. Under this argument, the jury is urged to look no further than guilt of capital murder. This is not the law.
But, if somebody is guilty of capital murder the ultimate crime, why should they get anything other than death?
* * * * * *
Now, there are questions on whether it deters or not, but let me say this to you: if it doesn’t deter crime by taking Mr. Newlons’ life, and it doesn’t deter anyone else out in the community — what harm had been done? ... At the very worst, if it doesn’t, you have simply given Rayfield what he deserves and that’s an “eye for an eye and a tooth for a tooth” and that’s what, I submit, this is all about, and I submit to you, that there is nothing wrong with that.
Fourth, the prosecutor argued the jury should impose the death penalty rather than life without parole for fifty years, because if the latter were selected there was no assurance the legislature might not change the law or that the sentence might not be commuted. These speculative possibilities do not' constitute aggravating circumstances. Under this line of argument, life imprisonment without parole for fifty years would never be an appropriate punishment.
[TJhat’s no big deal . . . what assurances do you have that he’ll be there fifty years? The legislature could change the law. All it says is no parole. It doesn’t say it can’t be commuted. There’s no assurance of that at all.
Fifth, the prosecutor sought to inject an implication as to what the trial judge’s personal feelings were about what punishment should be assessed by ostensibly explaining what the law was if the jury could not arrive at a unanimous decision, but leaving the impression that if the trial judge had his way the sentence would not be life:
The Judge in his instructions is going to tell you that you have two choices. . . . [I]f you can’t come to a unanimous decision, he then will impose sentence, which will be a life sentence without parole for 50 years. Now, I want you to understand that Judge Ruddy is required by law to give you that Instruction.... Now, that in no way is meant to indicate his Honor’s personal feeling as to what the sentence should be. So, don’t interpret that to mean that the Judge in this case feels Rayfield Newlon’s punishment should be life, and not death.
Sixth, the prosecutor sought to relieve the jury of taking full responsibility for its verdict by directing their attention to post trial procedures. The jury is supposed to decide the issue of appropriate punishment on the evidence before them, not on the basis that it is possible the reviewing authorities may temper their verdict later on.
Now, if you say he deserves the death penalty, under the law, Judge Ruddy must review it and if he agrees, then his decision is reviewed by the Supreme Court.
The question before the jury at the punishment stage was whether there was present an aggravating circumstance sufficient to warrant the imposition of death. Section 565.012.5. The prosecutor, by these improper arguments, diverted the jury from consideration of its statutorily defined duty to consideration of arbitrary and emotional factors. These arguments had a direct bearing on the verdict, as they were intended to have. This is sufficient reason to reverse the death sentence. But, of even greater importance is the conclusion that, when we compare this capital murder to the many other horrible capital murders we have affirmed on appeal where the punishment assessed was life without possibility of parole for fifty years, not death, the death sentence is a disproportionate penalty for this particular crime and for this particular defendant, even if he were the actual killer, and especially so when we cannot know whether the jury decided the defendant was the triggerman or the accomplice.
*635I would reverse the death penalty and remand for resentencing.
. All statutory references are to RSMo 1978 unless indicated otherwise.
. Instruction no. 9 was as follows:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about April 24, 1978, in the County of St. Louis, State of Missouri, the defendant or another caused the death of Mansfield Dave by shooting him, and
Second, that the defendant or another intended to take the life of Mansfield Dave, and
Third, that the defendant or another knew that they were practically certain to cause the death of Mansfield Dave, and
Fourth, that the defendant or another considered taking the life of Mansfield Dave and *625reflected upon this matter coolly and fully before doing so, and
Fifth, that the defendant acted either alone or knowingly and with common purpose together with another in the conduct referred to in the above paragraphs, then you will find the defendant guilty of capital murder.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
. The prosecutor in closing argument said, “Walter West got a deal — and quite frankly something I apologize to you for. It’s one of the regrets I have. Walter West got far too good of a deal, and it’s unfortunate that he’ll get off with ten years. ...”
. Franz Williams was not called as a witness by either side and did not testify in the Newlon trial.
. The prosecutor, after the jury had returned a verdict of guilty of capital murder, in his punishment stage argument stated, “By returning your verdict in this case . . . that either means mat you believe beyond a reasonable doubt that he pulled the trigger, or that he had the frame of mind that’s consistent with pulling the trigger ..."
. Newlon did not. His prior crimes were burglary, stealing and larceny.