concurring in part and dissenting in part.
The evidence amply supports the judgment of conviction, and I agree that it should be affirmed. The evidence also supports the submission of the death penalty, based on the statutory aggravating circumstances on which instructions were given. The sentence of death, however, should be set aside and the case remanded for a new trial of the punishment phase.
I.
Questions were asked of Juror Middleton, and answers given, (quoted in the principal opinion) which made it crystal clear that he would decree a death sentence if the jury should find the defendant guilty of capital murder. The trial judge did not “sustain” objections until after the questions had been asked and answers given. The trial judge and the prosecution knew the juror’s attitude; it was up to one or the other to proceed with rehabilitation to the extent possible. See State v. Smith, 649 S.W.2d 417, 427 (Mo. banc 1983). All information available at that point indicated that the juror should be excused for cause.
I cannot discern the slightest flaw in the questions asked. These questions are almost identical to those customarily asked by prosecutors in the course of “Wither-spooning” the jury.1 The prosecutor’s objection really amounts to a claim that the questions asked and the answers given showed the juror’s attitude too clearly. A question is not objectionable simply because it shows the need for further inquiry (which was not had here).
The general rehabilitation question was not sufficient. The jurors were simply asked whether they knew of any reason why they could not follow the instructions of the court. Middleton could have followed these instructions to the letter, while still applying his announced predilections. The instructions simply told him that that the jury, after considering the evidence and the aggravating and mitigating circumstances, had perfect discretion to decree death or life with mandatory 50 years. He had already indicated what he would do if presented with this choice.
The fault is aggravated because other jurors were excused under the Wither-spoon rule. The jury was purged of those who could not consider the death penalty, while the defense was obliged to use a valuable peremptory challenge to remove the juror who would not consider a life sentence. Both sides should be required to play by the same rules. Middleton simply should not have been tendered as a juror. Cf. Smith v. State, 573 S.W.2d 763 (Tex.Crim.App.1977).
II.
The instructions provided the prosecutor with a judicial summary of his argument for a death sentence, by mentioning non-statutory aggravating circumstances. Instruction # 24 at the penalty phase reads as follows: (Emphasis supplied).
If you find and believe from the evidence beyond a reasonable doubt that one or more of the circumstances submitted in Instruction No. 23 exists and that at least one of them is an aggravating circumstance, it will then become *847your duty to decide whether a sufficient aggravating circumstance or circumstances exist to warrant the imposition of death as punishment of defendant. In deciding that question you may consider all of the evidence relating to the murder of Daisy Nash.
You may also consider any of the following circumstances if you find from the evidence beyond a reasonable doubt that it exists and that it is an aggravating circumstance:
That within approximately six hours after the murder of Daisy Nash, defendant committed a second murder, the victim being Louanna Bailey. The murders were committed at different locations;
That Daisy Nash was a potential witness in a past felony criminal proceeding against the defendant on charges in Madison County Circuit Court, case number CR283-343FX, and Daisy Nash was killed as a result of her involvement as a material witness against the defendant;
That defendant on April 24, 1984, was a 25 year old male and Daisy Nash was a 72 year old female.
After the murders of Daisy Nash and Louanna Bailey, the defendant committed additional felonies involving the use or threat of violence to other persons while being held in the custody of the Jefferson County Jail.
If you do not unanimously find from the evidence beyond a reasonable doubt that a sufficient aggravating circumstance or circumstances exist to warrant the imposition of death as defendant’s punishment, you must return a verdict fixing his punishment 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 instruction had effect, as is shown in the jury’s verdict, which reads in pertinent part: (Emphasis supplied).
That within approximately six hours prior to the murder of Louanna Bailey, defendant committed another murder, the victim being Daisy Nash. The murders were committed at different locations.
That Louanna Bailey was a potential witness in a past felony criminal proceeding against the defendant on charges in Madison County Circuit Court, case number CR 283-343FX, and Louanna Bailey was killed as a result of her involvement as a material witness against the defendant.
That defendant on April 24, 1984, was a 25 year old male and Louanna Bailey was a 70 [sic] year old female.
After the murders of Daisy Nash and Louanna Bailey, the defendant committed additional felonies involving the me or threat of violence to other persons while being held in the cmtody of the Jefferson County Jail.
That the murder of Louanna Bailey was committed by the defendant for the purpose of preventing Louanna Bailey from testifying in a judicial proceeding.
The instruction is not inherently prejudicial, and is not unlike those which are frequently given in the federal courts2 and, no doubt, in other jurisdictions. But Missouri simply does not follow the format in which the trial judge summarizes the contentions of the parties, and our courts shy away from anything which might be considered a comment on the evidence.3 The same rules should apply in capital cases as in other cases.
The instruction, furthermore, does not follow MAI format.4 In State v. Cross, 594 S.W.2d 609 (Mo. banc 1980) a trial judge *848accompanied the reading of MAI-CR 2.01 and 2.02 with a detailed explanation about the jury system. This Court reversed, because of deviation from the format. There are no assertions that the judge had said anything that was misleading or legally erroneous. The refusal was simply because of the form. The holding has been followed in other cases.5 It should be followed in a capital case.
State v. Shaw, 636 S.W.2d 667 (Mo. banc 1982), cited in the principal opinion, is not at all in point. It simply holds that the prosecution may introduce evidence of, and may argue, non-statutory aggravating circumstances such as the presence of prior convictions. The case has nothing to do with instructing the jury. It does not justify the court in making or supplementing the prosecutor’s argument in its instructions.
The principal opinion stands in stark contrast to State v. Young, 701 S.W.2d 429 (Mo. banc 1985), in which the defendant was refused an instruction on a non-statutory mitigating circumstance, and was relegated to argument. The same rule should apply to the prosecution.
Procedural formalities should be strictly followed when the ultimate penalty is sought. Even though the record seems otherwise free of error, and the death sentence is entirely in line with other cases, it should not stand.
. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See State v. Johns, 679 S.W.2d 253, 264 (Mo. banc 1984); State v. Battle, 661 S.W.2d 487, 491 (Mo. banc 1983).
. E. Devitt & C. Blackmar, Federal Jury Practice & Instructions, Vol. I, §§ 10.10 and 13.07 (1977).
. Duncan v. Pinkston, 340 S.W.2d 753, 758 (Mo.1960).
. MAI-CR2d 13.40 and 13.41.
. State v. Harvey, 625 S.W.2d 198 (Mo.App.1981); Duebelbeis v. Dohack, 615 S.W.2d 488 (Mo.App.1981); State v. Behrman, 613 S.W.2d 666 (Mo.App.1981); State v. Baker, 595 S.W.2d 801 (Mo.App.1980).