concurring in part and dissenting in part.
I concur in the affirmance of the conviction and the order denying 29.15 relief.
I cannot, however, accept the startling proposition that error in the instruction submitting the single statutory aggravating circumstance may be corrected by the action of the trial court in ruling the application for reduction in sentence, under the authority of Rule 29.05. The simple reason is that there is no assurance that the jury would have authorized a death sentence if it had been properly instructed in accordance with Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and the limiting construction announced in State v. Preston, 673 S.W.2d 1, 11 (Mo. banc 1984).
The instruction, as given, submitted the single aggravating circumstance that “the murder ... involved torture and/or [sic] depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible or inhuman.” Section 565.-032.2(7), RSMo 1986. The principal opinion properly found that this submission conflicts with Godfrey. The instruction also runs afoul of Maynard v. Cartwright. See also, Newlon v. Armontrout, 885 F.2d 1328 (8th Cir.1989) cert. denied, Delo v. Newlon, — U.S.-, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990). The fault in the instruction is that it fails to instruct the jury with sufficient precision as to the findings which must be made to lay the foundation for a death sentence. In our idiom, the instruction gives the jury a roving commission.
In Preston we sought to flesh out the essential requirements of the “depraved mind” submission, in order to channel the jury’s inquiries along lines sufficiently definite to stand constitutional scrutiny. The present jury, however, was not instructed in accordance with the Preston guidelines. As the Supreme Court of the United States makes clear, the direction to the jury is not adequate unless the narrowing construction is given to the jury in the form of instruction. In Walton v. Arizona, — U.S. -, 110 S.Ct. 3047, 3056-7, 111 L.Ed.2d 511 (1990), the court says:
When the jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury on the bare terms of an aggravating circumstance. That is unconstitutionally vague on its face. ...
It is significant that this jury specifically excluded “torture” in its reported finding. It must be assumed, therefore, that it was unwilling to make the explicit finding of torture which might possibly sustain its death verdict. See Mercer v. Armontrout, 844 F.2d 582 (8th Cir.1988), cert. denied, 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988).
The principal opinion now tries to save the verdict, relying on Walton, by holding that the trial judge is the “final sentencer.” 1 Walton, by its express statement is limited to cases of judge sentencing rather *23than jury sentencing, in accordance with Arizona practice. Id. 110 S.Ct. at 3051. The principal opinion would extend Walton so as to save the death sentence in this case. I believe that this attempt runs counter to basic principles of Missouri law, which commits the assessment of the death sentence, if appropriate aggravating circumstances are found, to the complete discretion of the jury. § 565.030.4, RSMo 1986.
It is inaccurate to say that the judge is the final sentencer, because the judge may pronounce a death sentence only if the sentence is authorized by a jury, or if the jury has found aggravating circumstances and has explicitly reported its failure to agree on the sentence. § 565.032, RSMo 1986. Unless the jury is properly instructed, its verdict cannot support a sentence of death. It simply cannot be assumed that a properly instructed jury would have returned a death sentence. I am quite prepared to agree that the trial court, in ruling the 29.05 motion for reduction of sentence, gave attention to the Preston formulation. But the jury did not have the benefit of this formulation. I am aware of no other situation in which Missouri law authorizes the trial court to correct a verdict which is based on an erroneous instruction.
Walton is not sufficient authority because it involves judge sentencing rather than jury sentencing. Perhaps the Supreme Court of the United States will not disturb this Court’s radical alteration of the requirements of Missouri law, concluding that we have the authority to allocate the sentencing function between judge and jury as we see fit. The legislature has already allocated these functions.
But we should be true to our own law and traditions. Up to now the right of trial by jury has been considered to be a right of trial by a properly instructed jury. The principal opinion is judicial legislation substantially altering the right of trial by jury in death cases. I cannot join it. We should not strain to affirm death sentences. We should, if anything, insist on stricter adherence to procedural requirements when the ultimate penalty is at stake.
I would vacate the death sentence and remand the case for further proceedings consistent with the views here expressed.
. It would be equally logical to argue that the governor acts as "final sentencer" according to § 565.020.2, RSMo, which grants the governor power to "release" the defendant.