dissenting.
I respectfully dissent.
Michael White as an inactive participant was charged with and convicted of capital murder in the death of Susie Hawkins under § 565.001, RSMo 1978 which provides that “[a]ny person who unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder.1 The principal opinion sets forth the evidence the state introduced to support a conviction of capital murder. There was, however, conflicting evidence from which the jury, if properly instructed, could have found the defendant not guilty or guilty of a lesser offense. The defendant, who had no prior convictions, testified that he did not know that Hardy Bivens intended to shoot the girls; he testified that he carried the gun because of trouble in school; he testified that he placed the gun *949on the seat of the car because he did not want to be arrested for carrying a concealed weapon; he testified that he obeyed Hardy Bivens in driving around the block and giving him bullets because of fear, that Bivens threatened him with the weapon several times. Furthermore, Janice Thompson testified that Hardy Bivens, not Michael White, was the person who threatened and ultimately shot her and killed Susie Hawkins, her step-sister. The defendant did not know Susie Hawkins and knew Janice Thompson only through Hardy Bivens and school. There was no evidence of any motive for Michael White to kill the girls, other than that White and Bivens were friends.2
The defendant argues on appeal that the jury was improperly instructed in three respects. First, the non-MAI-CR verdict directors misstated the applicable Missouri law on capital murder and accessorial liability. Second, the use of “will” rather than “may” in the second paragraph of instructions no. 7, no. 9, and no. 11, the verdict directors, was error (a fact conceded by the state) and was prejudical. Third, the trial court erred in refusing to give instruction no. B, a converse instruction in which the defendant’s mental state as to the underlying crime was emphasized.
Had Hardy Bivens been the defendant in this case, the jury to find him guilty of capital murder, the most deliberate of all homicides, would have had to find and believe beyond a reasonable doubt four elements taken from MAI-CR2d 15.02 and set out below:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on February 5, 1979, in the City of St. Louis, State of Missouri, the defendant caused the death of Susie Hawkins by shooting her, and
Second, that the defendant intended to take the life of Susie Hawkins, and
Third, that the defendant knew that he was practically certain to cause the death of Susie Hawkins, and
Fourth, that the defendant considered taking the life of Susie Hawkins and reflected upon this matter coolly and fully before doing so
then you will find the defendant guilty of capital murder.
The facts of the instant case are different, however. Michael White did not kill Susie Hawkins; Hardy Bivens killed Susie Hawkins. By definition, capital murder is committed by one who “unlawfully, willfully, knowingly, deliberately, and with premeditation kills” another. Section 565.001. Beyond question it requires a culpable mental state, an evil intent. This necessarily must be true of one who aids in a capital murder as well as of the one who actually does the killing. It is unthinkable that it would require less in the way of a culpable mental state to be convicted as an aider in capital murder, where the death penalty is possible, than it does to be convicted as the principal. Defendant was charged with and convicted of capital murder on the basis of the conduct of Hardy Bivens, i.e., the act of killing, under the authority of § 562.036 which provides that “[a] person with the required culpable mental state is guilty of an offense if it is committed by . . . the conduct of another person for which he is criminally responsible .. .. ” (Emphasis added.)
The next section of the code, § 562.041, tells when a person is considered “criminally responsible for the conduct of another." Section 562.041.1(2) states that “[a] person is criminally responsible for the conduct of another when . . . [ejither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids . .. such other person in planning, committing or attempting to commit the offense.”
*950Section 562.051 must also be considered, because it applies when an offense is divided into degrees, as is the case here. It provides that “each person is guilty of such degree as is compatible with his own culpable mental state .. . . ”
The verdict director, instruction no. 7, set out below, must be examined to see if the jury to convict defendant of capital murder as an inactive participant had to find all the elements of capital murder with the exception of the actual killing. There are certain principles to be applied in this examination. First, the instruction before us is not to be found in MAI-CR2d and therefore, does not have a presumption of validity. It was prepared by the prosecution and given over the objection of the defendant. Second, Rule 28.02(d) requires that “the form not in MAI-CR . . . shall be simple, brief, impartial, and free from argument. . . . All instructions, where possible, shall follow the format of MAI-CR instructions, including the skeleton forms therein.” Third, “[a]n instruction must require the jury to find every fact necessary to constitute the essential elements of the offense charged .... State v. Singleton, 602 S.W.2d 3, 8 (Mo.App. 1980) (emphasis added). Fourth, each submission must be supported by the evidence.
Stated, succinctly, “[T]he ultimate test for the correctness of an instruction is whether it follows the substantive law and whether it will be correctly understood by a jury composed of average lay people.” Arthur v. Royse, 574 S.W.2d 22, 24 (Mo.App. 1978).
Instruction No. 7 was as follows:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on the 5th day of February, 1979, Hardy Bivens with the aid or attempted aid of the defendant committed the crime of capital murder of Susie Hawkins,
in that Hardy Bivens, with the aid or attempted aid of the defendant caused the death of Susie Hawkins by shooting her, and
in that Hardy Bivens, with the aid or attempted aid of the defendant intended to take the life of Susie Hawkins, and
in that Hardy Bivens, with the aid or attempted aid of the defendant knew he was practically certain to cause the death of Susie Hawkins, and
in that Hardy Bivens with the aid or attempted aid of the defendant considered taking the life of Susie Hawkins and reflected upon this matter coolly and fully before doing so, and Second, that the defendant either before or during the commission of the offense of capital murder with the purpose of promoting its commission aided Hardy Bivens in committing that offense,
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 the foregoing propositions, you must find the defendant not guilty of that offense.
Paragraph First of No. 7, unlike a standard MAI-CR verdict director, first submits a conclusion; i. e., that Hardy Bivens with the aid of the defendant committed capital murder. After stating the conclusion, the instruction continues by the use of a series of “in thats” in an attempt to set forth the required elements of capital murder in an aider case. Then, if we put ourselves in the place of the jury and try to understand what the instruction is trying to say, we find ourselves in a “never-never land” of language. After calling for a finding that Bivens, with the aid of defendant, caused the death of Susie Hawkins by shooting her, the instruction continues “in that Hardy Bivens, with the aid or attempted aid of the defendant intended to take the life of Susie Hawkins”. Does this mean that defendant somehow aided Bivens in Bivens forming an intent to kill the victim? If so, where is the supporting evidence? Or does it mean that Bivens intended to take the victim’s life *951with defendant’s help? If it means this, where is there any requirement that the jury find what the defendant’s intent was? What Bivens may have intended is not binding on defendant.
The instruction then continues “in that Hardy Bivens, with the aid or attempted aid of the defendant knew he was practically certain to cause the death of Susie Hawkins.” What does this mean? Does it mean that the defendant aided Hardy Bivens in Bivens’ knowing? Does it mean that defendant was doing Hardy Bivens’ thinking for him? Does it mean that somehow by reason of the defendant’s aid, Hardy Bivens knew he was practically certain to cause the death? None of these is an element of the crime for capital murder, nor is there any evidence to support them. Or does it mean that Bivens knew he was practically certain to cause the death of Susie Hawkins with the aid of the defendant? If so, where is there any finding that defendant had a wrongful intent? As pointed out earlier, there was evidence that Bivens did obtain aid from defendant but it was due to defendant’s fear of Bivens. If the jury believed this, but interpreted the instruction •to mean that Bivens knew that with the aid of defendant Bivens was practically certain to cause the death of Susie Hawkins, the jury could believe that it was required to convict defendant even though his aid was given through fear and with no wrongful intent.
The above is followed by another “in that”, reading “in that Hardy Bivens with the aid or attempted aid of the defendant considered taking the life of Susie Hawkins and reflected upon this matter coolly and fully before doing so.” What does this mean? Does it mean that defendant aided Bivens in forming Bivens’ mental processes of considering taking the life of Susie Hawkins? That is what it seems to say. There is no evidence to support any such aid by defendant, even if it were an element of capital murder, as it is not. Does it mean that defendant aided Bivens in Bivens’ reflecting upon the matter coolly and fully? Again this is what it seems to say and again there is no such evidence. It is highly questionable to me that “a jury composed of average lay people”, Arthur v. Royse, supra, could understand this instruction.3
There is also another error in the use of the “in that” submission of instruction no. 7. By starting each fact issue with the words “in that”, which is similar to “because” or “by”,4 the instruction assumes the facts in issue. That is, it assumes that Bivens with the aid of defendant shot Susie Hawkins, that Bivens with the aid of defendant intended to take her life, that Bivens with the aid of defendant knew he was practically certain to cause her death and that Bivens with the aid of defendant considered taking her life and reflected coolly and fully before doing so. This leaves to the jury the sole determination of whether or not the assumed facts constituted capital murder. This clearly is reversible error. See State v. Durio, 512 S.W.2d 833 (Mo.App. *9521974), where the defendant’s conviction for careless and imprudent driving was reversed because the instruction submitted assumed a controverted material fact. The jury in Durio was instructed that if it found and believed that defendant “did wilfully and unlawfully operate ... in a careless and imprudent manner by failing to exercise the highest degree of care in making a left turn from the right hand lane . .. . ” Id. at 834. This was prejudicial error because “[a] reasonable reading of Instruction No. 4 shows that it assumes that the turn in issue was indeed made from the right-hand lane and leaves to the jury the sole determination of whether or not this assumed act was careless and imprudent.” Id.
Next, even if the jury could figure out the instruction, it does not accord with the basic principles of criminal liability set out in Chapter 562. Section 562.011 provides that “[a] person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act.” Section 562.016 provides in part that “a person is not guilty of an offense unless he acts with a culpable mental state.” (Emphasis added.) This section codifies a long-standing legal principle that was restated by the United States Supreme Court in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.
Id. at 250, 72 S.Ct. at 243. See also State v. Clark, 615 S.W.2d 55, 58 (Mo. banc 1981) (Donnelly, J., dissenting); People v. Aaron, 409 Mich. 672, 299 N.W.2d 304, 316 (1980) (“ ‘If one had to choose the most basic principle of the criminal law in general ... it would be that criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result .... ’ ”).
Sections 562.011, .016, .036, .041.1(2), and .051, which apply to crimes committed after January 1, 1979, set forth the basic principles of accessorial liability.5 Even before the enactment of the 1979 code, Missouri courts generally recognized that an aider, before he could be held criminally liable, had to have the intent to aid, State v. Grebe, 461 S.W.2d 265, 268 (Mo. banc 1970), and the intent required for the underlying crime, which usually was expressed as an intent held in common with the other participants. State v. Goodman, 482 S.W.2d 490, 492 (Mo.1972). The new code explicitly states the mental state requirements of ac-cessorial liability and expresses “the prevailing view . . . that the accomplice must also have [in addition to the intent to aid] the mental state required for the crime of which he is to be convicted on an accessory theory.” W. LaFave & A. Scott, Criminal Law § 64, at 506 (1972). Section 562.036 provides that “[a] person with the required mental state is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is criminally responsible . . . . ” (Emphasis added.) Section 562.041.1(2) provides that “[a] person is criminally responsible for the conduct of another when . .. [e]ither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids . . . such other person . .. . ” (Emphasis added.) Section 562.051 provides that “when two or more persons are criminally responsible for an offense which is divided into degrees, each person is guilty of such degree as is compatible with his own culpable mental state . . . . ” (Emphasis added.)
*953I believe that the appellant is correct in his contention that these statutes require the state to plead and prove that the inactive participant had the intent to aid the active participant and the intent of the underlying crime and that the jury must be so instructed. In Reece v. State, 521 S.W.2d 633 (Tex.Cr.App.1975), there was evidence sufficient to convict both defendants of aggravated robbery. Nevertheless, the jury convicted the inactive participant of “simple” robbery and the active participant of aggravated robbery under an acces-sorial statute similar to that of Missouri. The active participant challenged his conviction, claiming that the jury had to find the two defendants equally guilty. The court, in overruling this argument, stated that “a jury may find one defendant guilty of a lesser included offense and another defendant guilty of the greater offense.” Id. at 635. See generally Comment, Accomplice Liability Under the 1979 Missouri Criminal Code, 44 Mo.L.Rev. 233 (1979). This is because accessorial liability is a means of imputing only the conduct of the active participant, not his mental state. Thus, the mental state of the active participant cannot be substituted for that of the aider in instructing the jury in a prosecution for an offense divided into degrees. This must be contrasted with the situation in State v. Lute, 608 S.W.2d 381 (Mo. banc 1980), where the conviction of the inactive participant was reversed because the active participant’s mental state was not included in the verdict director. Under § 556.170, RSMo 1969, the active participant’s mental state had to be submitted to the jury because that statute, since repealed, provided that the accessory before the fact was, upon conviction, to be found guilty in the same degree as the principal. Now, under § 562.-051, it is expressly declared that where there is criminal responsibility of two or more persons for an offense which is divided into degrees (as is true here where second degree and manslaughter verdicts were submitted as well as capital murder) “each person is guilty of such degree as is compatible with his own culpable mental state.” (Emphasis added.) This is a change from § 556.170, RSMo 1969 and it applies to the present case.6 Under the principal opinion, however, the law on ac-cessorial liability is returned to what it was under § 556.170, RSMo 1969. This is contra to the new code.
I am unsure whether the principal opinion shares my belief that, to be convicted of a crime as an inactive participant, the jury must find that the defendant has the intent to aid and the intent of the underlying crime. At 944, the principal opinion states that “[i]n appellant’s view an aider must have two intents [the intent to aid and the intent of the underlying offense charged], and the jury must be so instructed.” At 944, the principal opinion states that “[ajppellant’s reading of this statutory scheme is too broad in the sense that he views it as requiring the jury to find two specific intents. If the Legislature had intended to require an aider to have a dual intent, it would have said so in the statutes.” At 945, the principal opinion, citing with approval State v. Grebe, 461 S.W.2d 265 (Mo. banc 1970), states, “this Court held that the intent to aid or purposeful aiding is an essential element of aider liability.” Then, at 946, the principal opinion states that “the jury necessarily found that defendant had the same intent as the active participant, Hardy Bivens.” Thus, the logical conclusion from the opinion is that the jury had to find two intents, the intent to aid and “the same intent as the active participant,” i. e., the intent necessary for the underlying offense, but was not required to be told in the instructions it was to do this.
Be that as it may, the principal opinion concludes that because the jury was in*954structed in paragraph Second of No. 7 that the defendant “with the purpose of promoting its commission aided Hardy Bivens in committing that offense [capital murder]” and, under instruction no. 7, found the defendant guilty of capital murder, it “necessarily found that defendant had the same intent as the active participant, Hardy Bivens.” At 946. The opinion goes on to state that “[t]he jury was free to find the defendant did not purposely aid in premeditated murder because it was instructed as to lesser degrees of homicide and further so instructed by Instruction No. 6.” Id.
I cannot agree with the conclusion of the principal opinion that the jury necessarily found that the defendant had the required mental state for a conviction of capital murder or that the jury was free to find the defendant guilty of a lesser offense. As will be seen by looking at the three verdict directing instructions, what this defendant is guilty of under these instructions is what the jury believes Bivens is guilty of. The jury was not free to find defendant guilty of any lesser degree of homicide than that committed by Bivens.
Each instruction provides that if the jury finds Hardy Bivens committed the offense of capital murder (No. 7) or second degree murder (No. 9) or manslaughter (No. 11), then the jury will find the defendant guilty of the offense committed by Bivens. While the import of the principal opinion is that the jury was to consider the defendant’s guilt or innocence as to the various degrees of offenses independently from others liable and that the jury was free to find defendant guilty of a lesser offense than Bivens, the way the instructions were written, the jury could not do so. In order to find defendant guilty on any of the offenses submitted the jury had to find Bivens guilty of the same offense. There was no instruction under which the jury could find defendant guilty of a lesser offense than that committed by Bivens, although there was an abundance of evidence under which defendant could have been found guilty of a degree of homicide lesser than capital murder.
This produces a conflict with instruction no. 6 (MAI-CR2d 2.14). No. 6 tells the jury that “when two persons are criminally responsible for an offense which is divided into greater and lesser offenses, each such person is guilty of that offense, greater or lesser, which is compatible with the state of mind with which he acted . . . . ” As shown above, however, the jury was precluded under the instructions given from finding defendant guilty of anything other than the offense committed by Bivens. Such a conflict is reversible error. See State v. Banks, 258 Mo. 479, 492, 167 S.W. 505, 509 (1914). See also Herr v. Ruprecht, 331 S.W.2d 642, 652 (Mo.1960) (Storckman, J., concurring); Wabash Railroad Co. v. Dannen Mills, Inc., 365 Mo. 827, 830, 288 S.W.2d 926, 927 (Banc 1956). The jury could not comply both with instruction no. 6 and the verdict directors.
Additionally, use of “will” instead of “may” in the verdict directors further exacerbates the prejudicial effect of taking away any option, on the part of the jury to find that Bivens and defendant were not culpable to the same degree. The state concedes the use of “will” was error, but that it was not prejudicial, with which the principal opinion agrees, saying that “if the jury understood it could consider defendant’s liability as to each degree, then the use of ‘will’ instead of ‘may’ has no prejudicial effect”. But as said, the verdict directors contradicted instruction no. 6 and gave the jury no opportunity to consider defendant’s liability other than as it paralleled Bivens’ liability. It is difficult to conceive how it can be concluded that the state has clearly demonstrated that the error was not prejudicial.
The defendant, in an effort to focus the attention of the jury on his mental state rather than that of Hardy Bivens, submitted a converse instruction, instruction no. B, which the court refused to give:
If you do not find and believe from the evidence beyond a reasonable doubt that *955the Defendant did consider taking- the life of Susie Hawkins and did reflect upon this matter coolly and fully before doing so, you must find the Defendant not guilty of Capital Murder.
This instruction conversed what the defendant obviously considered the weakest element of the state’s case — the deliberate intent required for a conviction of capital murder. It ties in closely with the law stated in § 562.051 that when there is an offense divided into degrees, a defendant is guilty of such degree “as is compatible with his own mental state”. It also is consistent with instruction no. 6, MAI-CR2d 2.14, which informed the jury when two persons are involved each person is guilty of the offense “which is compatible with the state of mind with which he acted.” 7 Likewise, if the format suggested in note 3 were also used for the second degree and manslaughter submissions, it would be possible for the jury to find defendant guilty of a degree of the offense lesser than that of the principal, and would eliminate the conflict with instruction no. 6. The suggested format does not make the error of starting out with the conclusion as do instructions nos. 7, 9 and 11, that on the day in question Bivens with the aid of defendant committed capital murder (or second degree murder or manslaughter). That is what causes the trouble. Instruction no. B was refused because the trial court objected to the form of the converse and that the instruction failed “to include reference to Hardy Bivens as being the perpetrator with the aid or attempted aid of the Defendant.” Although the proffered instruction was not artfully drafted, its refusal, I believe, was error because it negated a crucial mental element of the state’s case against defendant. What was said in State v. McWilliams, 331 S.W.2d 610 (Mo.1960) is certainly true here. “The instructions given by the court may have abstractly covered the subject of intent but the defendant was entitled to a factual, affirmative converse hypothesization which is not to be found in the instructions given.” Id. at 613.
In response to all of defendant’s contentions that the jury was erroneously instructed, the principal opinion concludes that because the jury was instructed in paragraph Second that the defendant “with the purpose of promoting its commission aided Hardy Bivens in committing that offense [capital murder]” and, under this instruction, found the defendant guilty of capital murder, it “necessarily found that defendant had the same intent as the active participant, Hardy Bivens.” At 946. The principal opinion implies that because paragraph Second was submitted to the jury, it cured any and all wrongs there were in the other portions of the instruction.
Defendant was entitled to a direct and explicit submission of the vital issue of whether he realized what Bivens was going to do and deliberately set about helping him. Bivens put seven shots into Susie Hawkins’ head. The first portion of instruction no. 7 — the part with all the “in thats” — concentrates on Bivens and Bivens’ actions, at which the jury must have been aghast. Then paragraph Second, the only paragraph devoted to the defendant’s actions, glosses over the matter without calling upon the jury to determine, in the words of Section 562.016.2 (which defines “acts purposely”),8 that it was defendant’s conscious object to bring about the end result. The paragraph Second of instruction no. 7, a not in MAI instruction, was too subtle and imprecise to cure the many errors in the first part of the instruction, and *956failed to present squarely and fairly the issue of defendant’s intent.
I would reverse and remand so that Michael White could have a fair trial by a jury that was properly instructed. Whether this court believes the conflicting evidence as to defendant’s involvement, is irrelevant, because “[w]here intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury.” Morissette v. United States, 342 U.S. at 274, 72 S.Ct. at 255 (emphasis added). “Of course, the jury . . . [considering the defendant’s testimony] might have disbelieved his profession of innocent intent .... Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges .... Had they done so [refused to convict], that too would have been the end of the matter.” Id. at 276, 72 S.Ct. at 256.
. All statutory references are to RSMo 1978 unless indicated otherwise.
. While motive is not an essential element of capital murder, lack of motive could bear on whether defendant would willfully and purposely involve himself in helping shoot the two girls.
. A clear and legally accurate instruction would have been the following:
If you find and believe beyond a reasonable doubt:
First, that on the 5th day of February, 1979, Hardy Bivens caused the death of Susie Hawkins by shooting her, and
Second, the defendant with the purpose of promoting the killing of Susie Hawkins aided Hardy Bivens in killing her, and
Third, the defendant intended to take the life of Susie Hawkins, and
Fourth, the defendant knew the conduct of Hardy Bivens was practically certain to cause the death of Susie Hawkins, and
Fifth, the defendant considered taking the life of Susie Hawkins and reflected upon this matter coolly and fully before aiding Hardy Bivens in killing Susie Hawkins,
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 the foregoing propositions, you must find the defendant not guilty of that offense.
. See Frace v. Long Beach City High School District, 58 Cal.App.2d 566, 137 P.2d 60 (1943) where the court, quoting Webster’s New International Dictionary (1942 ed.) stated “in that” means “because, for the reason that.” Id. 137 P.2d at 62.
. “The Code’s [1979 Missouri Criminal Code] most notable features are the state of mind requirements. By providing that a defendant’s punishment shall be assessed according to his personal culpability rather than that of a third party, it aligns Missouri accomplice liability theory with accepted principles of modern criminal justice.” Comment, Accomplice Liability Under the 1979 Missouri Criminal Code, 44 Mo.L.Rev. 233, 268 (1979).
. Supplemental Notes on Use under MAI-CR2d 17.00.7 states: “The new Criminal Code repealed Section 556.170, effective January 1, 1979, and enacted Sections 562.036, 562.041, 562.046, 562.051 and 562.061 on the subjects of responsibility for the conduct of another .... ”
. This was not an easy case for the jury under the instructions and the evidence. The jury retired at 2 p. m. They did not reach a verdict until 12:20 a. m. the following morning. In the interim the jury had come in twice to ask questions, first at 2:20 p.m. and again at 6:42 p.m. Both times they were referred back to the instructions.
. Section 562.016.2 provides that “[a] person ‘acts purposely’ ... with respect to his conduct or to a result thereof when it is his conscious object to engage in that conduct or to cause that result.”