Senior Judge, concurring in part and dissenting in part.
I concur with that portion of the principal opinion which affirms the conviction of capital murder, but I respectfully dissent with respect to affirmance of the death penalty. My problem with the principal opinion in this regard is that it does not, in my opinion, demonstrate that the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
If there is anything clear it is that for a death penalty statute to be valid, the statute must provide a “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. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980); See also Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (“similar *108results ... in similar cases”); Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (White, J. concurring) (“meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not”); Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (“we cannot avoid the conclusion that an individualized decision is essential in capital cases”); State v. Baker, 636 S.W.2d 902, 911 (Mo. banc 1982) (“After examining these cases [referring to other cases] and giving to each of them the individualized consideration required ... we find that they do not point to excessiveness or disproportionality in the sentence in this case.”)
The response of the Missouri legislature to the above requirement was to enact § 565.014.3(3)1 which imposes on the court the duty of determining “whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant” and § 565.014.5(2) which authorizes us in instances of excessiveness or dispropor-tionality to set the death sentence aside and remand for resentencing, as we did in State v. McIlvoy, 629 S.W.2d 333, 342 (Mo. banc 1982).
The principal opinion disposes of this aspect of the appeal with a single sentence at the close of the opinion, stating the conclusion that the penalty imposed is not excessive or disproportionate and citing, without elaboration, State v. Stokes, 638 S.W.2d 715 (Mo., banc 1982).
In Stokes, a thirty-three year-old divorcee, mother of three children, was found dead on the floor of her bedroom, nude, with a pillow case over her head and an apron wrapped around her neck, three days after she and defendant had left a bar together one night to go to her apartment. Her apartment was in disarray, with the bedroom ransacked. Her pendant watch and her automobile were missing.
The autopsy disclosed the following:
“... a shallow incision, over the left upper chest just beneath the clavicle, that was two inches in length, one and one-half inches in width and just beneath the skin; a cut on the back of the right hand; a cut on the surface of the hand; a deep cut over the back; a large cut in the posterior aspect of the lower third of the right arm which measured three inches in length, one-half inch wide and two inches deep, extending to the bone; a large area of bruising that was slightly raised and purple over the left side of the chest; a large bruise internally over the left side of the chest; numerous bruises and abrasions on both sides of the neck, some irregular, and others in a straight line running around to the posterior aspect of the neck; the right side of the lips were swollen and dark purple; dried blood was present in and outside the nose; several scrapes or abrasions were present on the face, one on the right side of the nose and another on the right temple; multiple areas of hemorrhage within the neck muscles; areas of fresh hemorrhaging in the thyroid gland and in the larnyx; one of the angles of the hyoid bone had been broken recently; a rather large abrasion over the back and sacrum; a superficial, one-fourth inch deep cut into the subcutaneous fat on the right chest in the shape of a round puncture; and, a slight abrasion to the right knee; liver mortis was evident; examination of the vagina revealed spermatoza and it was thought that the victim had sexual intercourse within six hours of death; that the cause of death was manual strangulation although some linear abrasions apparently had been caused by the apron; that the victim was alive at the time of injury to the chest area as reflected by the condition of the resultant bruises; and, that death had occurred more than one day prior to the autopsy.
The defendant, Stokes, had an extensive record of prior convictions: one manslaughter, one second degree murder, three first degree robberies, three escapes, armed criminal action and theft of an automobile.
*109The jury assessed the death penalty and
found four statutory aggravating circumstances:
1. Substantial history of serious as-saultive convictions. § 565.012.2(1).
2. Murder for purpose of receiving something of value. § 565.012.2(4).
3. Murder involving torture or depravity and as result thereof outrageously or wantonly, vile, horrible or inhuman. § 565.012.2(7).
4. At the time of the murder defendant had escaped from custody. § 565.-012.2(9).
In deciding the proportionality question of the death penalty the court first pointed out that the evidence supported the finding of the four specified statutory aggravating circumstances above. The court then returned to the “torture or depravity of mind” aggravating circumstance and divided the evidence on this aggravating circumstance into four types of acts:
1. The severe beating of the victim about the head and upper chest.
2. The five stab wounds caused by a sharp instrument.
3. The apron wrapped around the neck with minor linear lacerations in the flesh, indicating that the murderer attempted to strangle the victim by tightening the apron in garrotte like fashion. The court pointed out the evidence was
that all of the above injuries were sustained while the victim was yet alive.
4. Manual strangulation of the victim, as shown by violent internal damage to the neck, thus exaggerating the serious physical abuse inflicted prior to actual death.
When we consider both the crime and the defendant, Stokes and the present case are dissimilar. Stokes had such a bad previous record that he fell in the class of those who have a substantial history of serious as-saultive convictions. In the present case the state did not even attempt to make such a charge against defendant and there was no evidence to support such a charge.2 In addition, Stokes murdered to obtain something of value and did so at a time when he was an escapee. As to the torture and depravity comparison, the victim in the Stokes case had been badly beaten about the head and chest, had been stabbed at least five times, had been subjected to an attempted garrotting by tightening of an apron around her neck, violent enough to leave linear imprints in her flesh, and then had been manually strangled with force sufficient to produce internal hemorrhaging in the neck and fracture of the hyoid.
In the present case there was testimony as to bruises or contusions on the victim’s forehead and right arm, but no contention is made that the victim was beaten as in Stokes. The autopsy disclosed two direct stab wounds to the chest, one of which penetrated both ventricles of the heart and which the pathologist testified “most assuredly would have caused death.” The other stab wound was into the upper lobe of the left lung. In addition the victim’s throat was cut, a wound which might not have caused death had prompt medical attention been available, according to the pathologist. As it was, the victim bled to death, almost a gallon of blood being found in the left chest. Vaginal examination disclosed no evidence of recent sexual activity.
Presumably the Stokes jury relied op all four statutory aggravating circumstances in assessing the death penalty. In the present case there was only one statutory aggravating circumstance.' The factors which the court relied upon to uphold the death penalty in Stokes have not been demonstrated to be present in the case at bar. If Stokes is the bench mark, this case does not meet it.
*110The main thing which the Stokes case and the present case have in common is that in each the jury found the statutory aggravating circumstance of § 565.012.2(7) — the one involving torture or depravity of mind. Some of our statutory aggravating circumstances permit an objective determination, such as, for example, whether the capital murder is committed for something of value, or against a police officer on duty, or by one who is an escapee at the time. But the one about the offense “being outrageously or wantonly vile, horrible or inhuman in that it involves torture or depravity of mind” calls for a subjective analysis on the part of the jury of terms which are emotionally provocative. Juries have no way to see how the crime before them and the imposition of the death penalty therefor compares to similar cases. Only this court is in a position to do that. I take it that the principal opinion is not meant for the proposition that where a jury in one case finds the statutory aggravating circumstance of § 565.012.2(7) and assesses the death penalty it follows that the death penalty is not excessive or disproportionate simply because another jury in some earlier case also found the same class of aggravating circumstance and assessed the death penalty. The principal opinion certainly makes no such declaration and if we were to find lack of disproportionality from the mere fact that both the jury here and the jury in Stokes found the same class of statutory aggravating circumstance — torture and depravity, then we would end our inquiry before it even began. We would be placing absolute control in the hands of the jury so long as it finds the same class of aggravating circumstance as found in some other case where the death penalty was affirmed. This sort of unbridled jury discretion in sentencing to death would violate due process, as established by the cases cited at the outset hereof. The jury was the sole determiner before Furman; it cannot be so now.
The statute enjoins this court to look at “similar cases, considering both the crime and the defendant.” The crime, of course, is the capital murder itself — what took place, what the defendant did. As for “similar”, according to Webster’s Third New International Dictionary (1967), p. 2120, it means having characteristics in common, alike in substance or essentials. All capital murders are alike in having the essentials called for by the statute defining the crime, § 565.001, and, factually, all have the characteristic of being worse than an ordinary homicide.
There is a vast array of capital murder cases in Missouri where what took place was equally or more revolting than what took place in the case at bar — cases which involve more killings, more stabbing, more blood, more callousness, more the mark of the beast — yet the punishment assessed was not death, but life imprisonment without possibility of parole for fifty years. Many of these are capital murders where stabbing and cutting have been the cause of death and where the state has sought the death penalty3 with the aggravating circumstance of torture or depravity under § 565.-012.2(7) being submitted to the jury. Others involve capital murders by shooting.
Making comparisons with similar cases involves a subjective analysis on our own *111part, but we have the time and the means by which to compare cases and then articulate why or what it is that causes us to reach the end result. Where do we find ourselves as to excessiveness or dispropor-tionality of the death sentence, in the present case when we compare it to these many cases, some of which are set forth briefly below, where the jury assessed not death, but life without parole for fifty years?
In State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981) and State v. Turner, 623 S.W.2d 4 (Mo. banc 1981), defendants were each found guilty of two counts of capital murder. They robbed a liquor store and killed the proprietor, age 72, and his employee, age 60. Both victims had been stabbed, one six to eight times in the chest and abdomen, and the other fifteen times, nine in the front part of the body and six in the back. Both victims also had severe wounds to the head from a blunt instrument such as a beer bottle or gun butt. In the Mitchell case, the jury was unable to agree on punishment and so, under § 565.006.2, defendant was sentenced to life without parole for fifty years on each count. In Turner, the jury assessed punishment on each count at life without parole for fifty years, not death.
In State v. Fuhr, 626 S.W.2d 379 (Mo.1982), defendant, age 23, killed a forty-three year-old woman. The victim was stabbed twenty-nine times with a butcher knife. Money, a wallet, and rings were taken from the victim. The robbery was planned by the victim’s daughter who asked the defendant to help. Some of the stab wounds had a depth of seven inches. The jury convicted defendant of capital murder and assessed the punishment not at death, but at life without parole for fifty years. The case was reversed and remanded for failure to instruct on first degree murder in the commission of robbery. Nevertheless, the jury’s assessment of life rather than death establishes what the maximum punishment can be in this case on retrial in event of conviction of capital murder. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). The case therefore, is properly one for comparison.
In State v. Hurt, No. 64213, pending in this court, the defendant, age 19, an inmate in the state penitentiary, stabbed his 21 year-old cellmate to death with a knife. There were more than sixty stab wounds. The jury assessed punishment not at death, but at life without parole for fifty years. I realize this case has not been decided, but in other cases, we have referred to the facts in pending cases in determining proportionality. See State v. Shaw, 636 S.W.2d 667, 676 (Mo. banc 1982), where the court referred to the then pending case of State v. Trimble [638 S.W.2d 726 (Mo. banc 1982) ] as a case involving the same aggravating circumstance as the Shaw case and one where the jury imposed the death penalty. Footnote 4 in the Shaw opinion points out that “We consider this case only to determine what penalty juries have imposed in factually similar situations” and cited State v. Bolder, 635 S.W.2d 673, 685 (Mo. banc 1982) in support. Footnote 8 in the Shaw case refers to State v. Baker, which had been argued and not yet decided at the time of Shaw (the jury imposed the death sentence in the Baker case) and also referred to another case pending here at the time but not yet argued, State v. Davis, No. 63474, where the jury assessed life without parole for fifty years, pointing out that the Davis case had evidence of extreme mental or emotional disturbance, something not present in Shaw. 636 S.W.2d at 676. In State v. Baker, mentioned above, 636 S.W.2d 902, 910 (Mo. banc 1982), the court, in considering proportionality of the aggravating circumstance of killing a police officer on duty, referred to State v. Davis, then pending in this court and which involved the same aggravating circumstance.
In State v. Laws, No. 63911, also pending in this court, defendant, age 31, with others, stabbed, choked and burned a 58 year-old man. The victim was kicked in the face, stabbed, and burned, although it could not be determined whether the victim was burned alive or was already dead. The victim was held hostage during the crime. The jury assessed punishment, not at death but life without parole for fifty years.
*112In State v. Scott, No. 68989, recently transferred to the court of appeals, defendant, age 16, stabbed to death a 60 year-old woman. Defendant and another man forced their way into the victim’s home at gunpoint to rob the victim and her 88 year-old husband. While inside the house, defendant systematically stabbed the victim twenty-two times, tore out patches of her hair and scalp, and kicked her as she lay dying. The jury assessed punishment, not at death, but at life without parole for fifty years.
In State v. Woods, No. 62878, recently transferred to the court of appeals, defendant, age 25, stabbed to death a 21 year-old woman. The victim was stabbed seven or eight times. The jury assessed punishment not at death, but at life without parole for fifty years.
There are other Missouri cases where death is due either to shooting or strangling, not stabbing, and the statutory aggravating circumstance of torture or depravity has been submitted to the jury, yet the outcome has been life without parole for fifty years, not the death sentence. For example, in State v. Gardner, 618 S.W.2d 40 (Mo.1981), defendant, age 24, participated with George Mercer [see State v. Mercer, 618 S.W.2d 1, 11 (Mo. banc 1981)], in the strangulation killing of a 23 year-old woman. Defendant brought the victim to a house where Mercer was staying. Mercer forced the victim into a room where he raped her. Gardner subsequently raped her also. Gardner left the house saying that Mercer should kill the victim. Mercer strangled the victim to death and disposed of her body. As said, Gardner’s punishment was fixed at life without parole for fifty years, not death.
In State v. Borden, 605 S.W.2d 88 (Mo. banc 1980), defendant, a 35 year-old woman, was convicted of the slaying of her husband. She fired a sawed-off .22 caliber rifle at him in his home where he was watching television. The couple’s two small children were in the house at the time. At the time of the killing, defendant was engaged in an illicit romance. She had previously attempted to persuade her paramour to kill her husband.
In State v. Bostic, 625 S.W.2d 128 (Mo.1981), defendant, age 35, struck and killed a 56 year-old woman. The victim was struck twice on the head with a pipe, dragged down the alley and loaded in a van. The defendant stepped on the victim’s throat when she regained consciousness. The body was left in a ditch outside the town. Defendant also assaulted deceased sexually. The jury, instructed on the depravity of mind aggravating circumstance, put the punishment at life without parole for fifty years, not death.
In State v. Laws, No. 63983, recently transferred to the court of appeals, Laws, age 31, in concert with another, held hostage for more than an hour, shot and burned an 85 year-old woman while in the process of a burglary. The victim was also struck at least once in the head. The trial judge commented that the death sentence would have been appropriate had the jury elected to assess it. Instead, the jury assessed punishment at life without parole for fifty years.
State v. Baskerville, 616 S.W.2d 839 (Mo.1981) is a good example of the lack of consistency in assessment of punishment for capital murder in this state when we compare cases. In Baskerville, the defendant was convicted of three counts of capital murder. The state sought the death penalty. One victim was shot twice, one was shot once, and a third, a child who begged for his life, was shot once. The jury, however, assessed punishment at life without parole for fifty years for the murders of the two adults, and the jury being unable to agree upon punishment for the capital murder of the child, the court assessed the same sentence in his case.
In its brief the state stresses that the death penalty should be sustained because the victim had “an opportunity to contemplate her fate” in that she was chased through her home. Yet in State v. Royal, 610 S.W.2d 946 (Mo. banc 1981), which was one of the cases used by the court for comparison purposes in State v. Newlon, 627 S.W.2d 606, 623 (Mo. banc 1982), the victim, a woman employee of the bank in *113Neeleyville, was abducted during the bank robbery, forced into the car and driven to a remote rural area of Butler County where she was shot three times. The lengthy ride must have been increasingly terrifying and ominous to the helpless victim. The jury, however, assessed punishment at life without parole for fifty years, not death.
In discharging our duty to see that the sentence of death is not disproportionate to the penalty imposed in similar cases, we have stated “Our concern is that there be ‘even-handed, rational and consistent imposition of death sentences under law’. Jurek v. Texas, 428 U.S. 262, 276 [96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976)”, State v. Bolder, 635 S.W.2d 673, 684-85 (Mo. banc 1982). I fail to see where the present case has been distinguished in a principled or meaningful way from the many cases above where the homicide was just as bad or worse, yet the jury elected life without parole for fifty years as punishment, not death. If we for whatever reason, do not make the distinction (and I do not believe it can be made here), then I do not believe the death penalty can stand in the particular case under consideration. I would therefore set aside the death sentence and remand for sentencing.
. All statutory references are to RSMo 1978.
. In the present case the jury did find as a nonstatutory aggravating circumstance the fact that defendant had been convicted of rape in Kansas in 1974. The record contains no information as to the degree of rape, its severity, the age or condition of the victim or the length of sentence. The sentence could not have been too severe, as defendant obviously was out of prison in 1980. So far as rape itself is concerned, a death sentence for rape would be unconstitutional. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).
. If we were to include in our universe or pool of cases for comparison, cases where the state, for some unstated reason, did not seek the death penalty, we would be hard put to find similar results in similar cases. We would be confronted with cases such as State v. Holmes, 609 S.W.2d 132 (Mo. banc 1980) and State v. Hudgins, 612 S.W.2d 769 (Mo.1981). In Holmes, the defendant stabbed his sixteen year-old victim at least sixty four times with an ice pick like instrument, including nine separate wounds to the heart — torture and depravity in the extreme. Defendant had three days earlier announced his intention to kill the victim, even specifying that he would do it by stabbing him some sixty odd times. In Hud-gins, defendant’s landlord died from loss of blood after defendant 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. In both these cases the penalty was not death, but life without parole for fifty years. It is difficult to reconcile the outcome in these cases with the outcome in the present case.