RENDLEN, Judge.
I
Prohibition, to prevent respondent, the Honorable Donald L. Mason1 Judge of the Sixteenth Judicial Circuit, from proceeding in the retrial of Robert Bullington for capital murder (the indictment charged numerous offenses) without allowing the prosecution to seek imposition of the death penalty.
Prior to trial in 1978 the State under § 565.006(2), RSMo 1978,2 filed a “Notice of Evidence in Aggravation” announcing its intention to seek the death penalty in the capital murder charge. That trial resulted in a verdict of guilty on all counts including capital murder, October 11, 1978. A hearing was conducted the next day under the bifurcated procedure mandated by § 565.-006, RSMo 1978, in which the jury was presented additional evidence in “extenuation, mitigation, and aggravation” of punishment. The jury directed, that defendant be sentenced to life imprisonment without probation or parole for not less than fifty years.
[910]*910Defendant’s motion for new trial, challenging the constitutionality of the Jackson County jury panel, was sustained February 13, 1979, in light of the United States Supreme Court’s holding in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). In preparation for Bullington’s retrial the State has filed a second “Notice of Evidence in Aggravation” indicating its continued intention to seek the death penalty.3 Responding, defendant moved to strike that “Notice” and to exclude from trial all evidence in aggravation of punishment. Respondent announced his intention to enter an order sustaining defendant’s motion to strike, “to the extent that the state will not be permitted to seek the death penalty, should the defendant again be found guilty of capital murder.” Relator then sought prohibition and for reasons now discussed, our preliminary rule heretofore entered is made absolute.
II
Respondent first contends prohibition is inappropriate procedurally because (1) relator (Prosecuting Attorney of St. Louis County) failed to allege the State had no adequate remedy at law, (2) that the state’s limited right of appeal forecloses resort to prohibition, and (3) the issue does not involve the jurisdiction of the trial court. The first contention may be disposed of summarily. On October 2,1979, by order of this Court relator was permitted to amend its petition and allege the State had no adequate remedy at law. As to respondent’s second argument it is precisely because the state has an extremely limited right of appeal under § 547.210, RSMo 1978, and Rule 28:04 (now Rule 30.02) that extraordinary relief is proper to review interlocutory orders in criminal cases. See State ex rel Corcoran v. Buder, 428 S.W.2d 935, 939 (Mo.App.1968). Further, it is settled law that, “The writ is properly invoked to restrain the enforcement of orders beyond or in excess of the authority of a judge and to keep a court within the compass of its jurisdiction.” State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo. banc 1974). Because, as we shall presently discuss, neither the federal nor state constitutions nor Missouri law prevent Bullington from being subject to the death penalty on retrial, the trial court exceeded (or by its announced order would have exceeded) its authority in denying the state leave to seek imposition of the death penalty. Accordingly, prohibition lies. See State ex rel. Peach v. Bloom, 576 S.W.2d 744 (Mo. banc 1979).
Ill
The principal question for our determination is whether on retrial the death penalty under § 565.008, RSMo 1978 is barred as possible punishment by constitu-. tional or statutory considerations. Respondent argues that because the jury in the first trial convicted Bullington of capital murder but sentenced him to life, the fifth amendment’s prohibition against double jeopardy, the eighth amendment’s proscription of cruel and unusual punishment, the fourteenth amendment’s guarantee of due process and § 565.014.3(3), RSMo 1978, prevent the State from continuing to seek the death penalty. Long settled constitutional doctrine enunciated by this Court and reiterated in recent decisions of the United States Supreme Court leads to rejection of these challenges.
A defendant successfully overturning a conviction for a particular offense may in most instances be retried for that offense notwithstanding double jeopardy [955]*955doctrine.4 United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896); Forman v. United States, 361 U.S. 416, 425, 80 S.Ct. 481, 486, 4 L.Ed.2d 412 (1960); United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). In some cases the rationale for such results has been couched in language of a waiver theory and in others that retrial constitutes but continuing jeopardy. However the rule is more usually described in terms of policy considerations. As Mr. Justice Harlan explained in United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964),
While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.
Essentially respondent argues that the federal double jeopardy clause prohibits not the retrial for the offense of capital murder (Bullington was convicted of that offense) but only the imposition of a more severe punishment upon retrial. Such contention was squarely rejected sixty years ago in Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919). There defendant 5 was convicted in a second trial for the murder of a prison guard and sentenced to life imprisonment by the jury. On retrial (his third) secured by Stroud, the new jury also convicted him of first degree murder and he was sentenced to death. The Court held the fact that Stroud was subjected to the increased punishment of death upon retrial did not place him in double jeopardy. In North Carolina v. Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969), the Court reaffirmed that a necessary corollary of the power to retry a defendant is the state’s power to impose any legally authorized sentence upon reconviction, though greater than the sentence originally imposed. In refusing to depart from an unbroken 75 year line of decision supporting this principle, the court explained, “[T]he original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” Id. at 721, 89 S.Ct. at 2078. Recently the Court referred to Stroud as a “well-established part of our constitutional jurisprudence” and specifically declined an invitation to discard the principles stated there. Chaffin v. Stynchcombe, 412 U.S. 17, 24, 93 S.Ct. 1977, 1981, 36 L.Ed.2d 714 (1973). Within the past year the United States Court of Appeals for the Sixth Circuit, following Stroud and rejecting this same argument, held that the fifth amendment does not forbid imposition of the death penalty on retrial of defendant for an offense upon which he was originally sentenced to life. Gully v. Kunzman, 592 F.2d 283, 289 (6th Cir. 1979), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979).
Despite respondent’s stated intention to circumvent the effect of Stroud and the decisions following it, we find nothing in [912]*912the federal constitutional guarantee against double jeopardy to prevent the state from seeking the death penalty on Bullington’s retrial for capital murder.
Respondent quite untenably suggests that the legislature has bisected the crime of capital murder defined in § 565.001, RSMo 1978.6 He argues that if life imprisonment is the penalty imposed, the offense is somehow transfigured and changed into a lesser included offense of capital murder with capital punishment and becomes the crime of capital murder without capital punishment. Thus, he concludes, the jury’s imposition of life imprisonment implicitly constitutes an acquittal of the greater offense. We are unwilling and indeed are unauthorized to indulge such fiction. It is not our prerogative to create separate crimes from those defined by statute. The simple fact is that capital murder under § 565.001, RSMo 1978 is a single crime with the range of punishment established by the legislature at life imprisonment without probation or parole for 50 years to the death penalty. Respondent’s argument not only runs contrary to the decided eases, it ignores the statutory sections which define capital murder, prescribe the punishments for that offense, and detail the procedures for imposing those punishments. As noted above, there is but one crime defined as capital murder and the acts proscribed are specified in § 565.001. It was for that offense Bullington stood convicted following the first trial and it is for that offense he remains charged and awaits retrial.
As recognized by this Court in State v. Duren, 547 S.W.2d 476, 478-480 (Mo. banc 1977), federal constitutional requirements forbade mandatory imposition of capital punishment. In response to the constitutional directive that the jury’s discretion in capital sentencing be “suitably directed” so as to minimize the risk of arbitrary and capricious application, Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976), and that consideration of the individual circumstances of each offender and crime was “constitutionally indispensable,” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), the Missouri legislature enacted § 565.006 and § 565.012, RSMo 1978, providing for a presentence hearing following a conviction for capital murder at which time aggravating and mitigating circumstances as to the offender and the offense would be considered.7 The existence of these sentencing procedures does not alter the fact that capital murder by statutory definition § 565.001, RSMo 1978, is a single offense, namely the unlawful, willful, knowing, deliberate and premeditated killing of another human being. The jury, in the § 565.006 proceeding, does not reconsider the issue of guilt, for that has been previously determined. Instead, at that [913]*913stage they decide only the punishment to be imposed. In sum, the fact that the jury will consider the range of punishment for the offense of capital murder does not as respondent argues rend the crime of capital murder and create discrete offenses. The Stroud court dismissed such argument stating, “The fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for the first degree murder.” Stroud v. United States, 251 U.S. 15, 18, 40 S.Ct. 50, 51, 64 L.Ed. 103 (1919). See Redd v. State, 242 Ga. 876, 252 S.E.2d 383, 389 (1979), cert. denied, 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304.
Respondent also argues that the doctrine of collateral estoppel as embodied in the fifth amendment’s protection against double jeopardy forecloses the state from seeking the death penalty if Bullington is again convicted of capital murder, and points to Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). In Ashe the concept of collateral estoppel was elevated . to the level of double jeopardy. There several poker players at their game table were robbed. Defendant was tried and acquitted for the crime of robbing player # 1. An element necessary for conviction of that crime, (identity of the accused as the robber) was found against the State and defendant acquitted under his theory of alibi. In a later trial for the robbery of poker player # 2 the Court deemed it double jeopardy to relitigate the identity issue. The Ashe Court stated that whether an issue of ultimate fact necessary for conviction is determined by a general jury verdict requires a court, “to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration’.” Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194.
Respondent argues that a finding of no aggravation is necessary to the first jury’s finding that defendant suffer life imprisonment rather than death for the crime of capital murder; hence the State is estopped from seeking to prove aggravation in the second trial. This contention is without merit for a number of reasons. A rational factfinder might well premise its imposition of life imprisonment on various factors other than the absence of aggravation. The applicable instructions drafted by the Supreme Court Committee on Patterned Criminal Charges and Instructions for death penalty proceedings demonstrate this option in the jury. Under MAI-CR 15.42 if the jury finds that at least one of the statutory aggravating circumstances exists, it must decide whether it is a “sufficient aggravating circumstance” to warrant the imposition of the death penalty. Even then the jury need not impose death if in its weighing process it intuitively feels the mitigating circumstance(s) tips the scale against the death penalty. MAI-CR 15.44. Finally, though the jury finds that sufficient mitigating circumstance(s) have not been shown, defendant is given the further benefit of our Instruction MAI-CR 15.46 which provides: “[Y]ou are not compelled to fix death as the punishment. Whether that is to be your final decision rests with you.” Thus the predilections of the jury as to mercy and the death penalty remain a part of the system within the limits and safeguards established by statute.
Clearly the first jury might have imposed life imprisonment in response to a defendant’s plea for mercy rather than finding no aggravation. Ashe v. Swenson is inapposite here and the State is not precluded from seeking the death penalty by any aspect of the fifth amendment’s protection against double jeopardy.
Respondent, relying on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), next argues that allowing the prosecution to seek the death penalty, should Bullington be reconvicted of capital murder, would violate principles of due process in that a finding of capital punish[914]*914ment by the jury at retrial would be “tainted by vindictiveness.” However, Pearce is not controlling here. In that case, defendant’s conviction was reversed through collateral attack but on retrial he was again convicted and when resentenced by the court received more severe punishment than that originally imposed. Id. at 713-714, 89 S.Ct. at 2074-2075. The Pearce Court concluded, “Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. . [D]ue process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id. at 725, 89 S.Ct. at 2080. (Emphasis ours.) This exposure to possible vindictiveness of the sentencing judge does not occur in the jury sentencing process under Missouri’s capital murder statutes.
The due process clause is not violated by all possibilities of increased punishment upon retrial, “but only by those that pose a realistic likelihood of vindictiveness.” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). See Colten v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972). Ludwig v. Massachusetts, 427 U.S. 618, 627, 96 S.Ct. 2781, 2786, 49 L.Ed.2d 732 (1976). In this connection the Supreme Court held recently that Pearce-like restrictions were inapplicable in jury resentencing at least where improper and prejudicial information regarding the prior sentence is withheld. Chaffin v. Stynchcombe, 412 U.S. 17, 28, 93 S.Ct. 1977, 1983, 36 L.Ed.2d 714 (1973). The Chaffin court found the potential for vindictiveness in jury resentencing, de minimis for these reasons: First, a retrial jury in the normal course of events will be unaware of the disposition of the prior proceeding. Second, juries, unlike a trial judge, who has been reversed on appeal, will have no personal stake in the prior conviction and no motivation to engage in self-vindication on remand. Third, juries will not be sensitive to the institutional interests which might be promoted by imposing higher sentences after appeal as a means of discouraging meritless appeal. Id. at 26-27, 93 S.Ct. at 1982-1983.
Respondent, in a final attempt to circumvent the clear import of Chaffin, suggests that because that case did not involve a bifurcated proceeding as provided under the Missouri capital murder statute, the holding there does not control our case. However, this overlooks the fact that Chaffin states:
While some jury-sentencing States have adopted bifurcated jury trials, in which the jury assesses the punishment in a separate proceeding after a verdict of guilty has been rendered [citations omitted], bifurcation alone would not wipe away the fundamental differences between jury and judicial sentencing. It may make little sense to supply the jury with information about the defendant’s conduct if the goal of jury sentencing is not necessarily to fit the punishment to the offender, and if the jury is, therefore, not concerned about matters considered pertinent to judicial sentencing.
Petitioner and recent court of appeals cases suggest that an approximation of the Pearce limitations could be realized either by instructing the jury that it may return no verdict higher than the former sentence, or by empowering the judge to reduce the second sentence whenever it exceeds the former sentence, [citations omitted.] Although these alternatives would provide an absolute protection from the possibility of vindictiveness, they would also interfere with ordinary sentencing discretion in a manner more intrusive than contemplated by Pearce. They would achieve, in the name of due process, the substance of the result we have declined to approve under the Double Jeopardy Clause.
Id. at 28 n. 15,93 S.Ct. at 1983-1984 n. 15.
Such constraints upon jury discretion as those urged by respondent would be particularly unfortunate in the capital sentencing [915]*915area where individualized consideration of each offender is constitutionally required. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978).
Missouri decisions, prior to Chaffin, recognized that “vindictiveness” has no relevance to jury resentencing. See Spidle v. State, 446 S.W.2d 793, 795 (Mo.1969). Kansas City v. Henderson, 468 S.W.2d 48, 52-53 (Mo.1971), cert. denied, 404 U.S. 1004, 92 S.Ct. 570, 30 L.Ed.2d 557 (1971). Accordingly, we find that as a jury will decide whether Bullington should be subject to the death penalty if he is reconvicted of capital murder, there is no realistic likelihood of vindictiveness on retrial. It is appropriate to reemphasize that defendant has been awarded a retrial which he sought and it does not violate due process to permit such trial for the crime he was originally and still stands charged. Nor does the award of a new trial alter the range of punishment prescribed by the statute. The decision as to punishment under the prescribed procedure is that of the individual jury, not to be engrafted upon or controlling of a new jury not yet empaneled. To hold otherwise would distort the clear purpose of the statutory scheme which offers protection against aberrant results by establishing a system that allows the trier of fact (1) to determine guilt or innocence without the distraction of evidence irrelevant to that issue (§ 565.006), (2) if a guilty verdict is returned to consider facts in aggravation and mitigation as they relate to punishment (§ 565.006(2)), and (3) provides a system of mandatory review (§ 565.014) that guards against, among other things, a sentence imposed “under influence of passion, prejudice or any other arbitrary factor.” (§ 565.014.3(1)). This is not a deprivation of due process, but an extension to a high order of the process due the accused. The subsequent jury will decide the issues anew and it is their responsibility to determine guilt and assess the punishment upon conviction (§ 565.006.2). Further, if on appeal reversal occurs “because of error only in the presentence hearing, the new trial . . . shall apply only to the issue of punishment. ’ § 565.006(3). There is no suggestion in this language that on such new trial the range of punishment is restricted to life imprisonment only. To the contrary, the choice of punishment is the principal issue to be decided in such a new trial.
Respondent next contends the possibility of a harsher sentence on retrial would unconstitutionally chill defendant’s rights of appeal. We do not agree. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), cited by respondent as authority, involved a federal anti-kidnapping statute which allowed only the imposition of the death penalty following a jury trial. See 18 U.S.C. § 1201(a) (amended 1972). That statute was held to unconstitutionally deter the exercise of a defendant’s fifth and sixth amendment rights to insist upon his innocence and demand a trial by jury. 390 U.S. at 581-583, 88 S.Ct. at 1216-1217. Unlike the federal statute which singled for punishment by death that class of defendants who sought jury trials, the Missouri capital murder statutes draw no such invidious distinction.
Recent authority demonstrates that Jackson should be limited to statutes of the type which on their face penalize the assertion of constitutional rights. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), defendants entered pleas of guilty to avoid the possibility of the imposition of capital punishment by a jury. The United States Supreme Court held that the fact a plea was entered to avoid the imposition of the death penalty by a jury did not ipso facto render the plea involuntary. Brady v. United States, 397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970); North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). If the threat of the. death penalty does not imper-missibly coerce guilty pleas and encourage waiver of the plethora of rights guaranteed in a criminal trial under the fourth, fifth, [916]*916sixth and fourteenth amendments, we do not believe the possibility of capital punishment unconstitutionally chills a defendant’s right to appeal. This view is supported by that expressed in Chaffin v. Stynchcombe, supra, 412 U.S. at 35, 93 S.Ct. at 1986, where it is stated: “The choice occasioned by the possibility of a harsher sentence, even in the case in which the choice may in fact be “difficult,’ does not place an impermissible burden on the right of a criminal defendant to appeal or attack collaterally his conviction.”
Respondent next contends that § 565.008, RSMo 1978, is unconstitutional because the death penalty permitted therein constitutes cruel and unusual punishment violative of the eighth amendment of the United States constitution and art. I, § 21 of the Constitution of the State of Missouri. This contention, first raised in defendant’s Motion to Strike was renewed in respondent’s brief before this Court with this language, “the death penalty, . . is in all circumstances, a cruel and unusual punishment under both Federal and State constitutional provisions . . Respondent is quite mistaken, the death penalty is not per se violative of the eighth amendment. See Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976). Further, because the statutory procedures for imposition of the death penalty in Missouri are virtually identical to those contained in the Georgia statute challenged in Gregg no serious question remains as to their validity under the federal constitution. See Gregg v. Georgia, 428 U.S. 153, 196-207, 96 S.Ct. 2909, 2936-2941, 49 L.Ed.2d 859; Lockett v. Ohio, 438 U.S. 586, 604-605, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978).
Thus we need examine only for the validity of § 565.008, RSMo 1978, under art. I, § 21 of the Missouri Constitution.8 The ultimate question is whether the punishment is disproportionate to the crime for which imposed. State v. Agee, 474 S.W.2d 817, 822 (Mo.1971); State v. Brownridge, 353 S.W.2d 715, 718 (Mo.1962). In this connection it has been held that a punishment is not cruel simply because it is severe. Id. State v. Stubblefield, 157 Mo. 360, 58 S.W. 337, 339 (Mo.1900). When considering the constitutionality of a punishment statute enacted by our legislature, we presume its validity and those who seek to invalidate it bear a heavy burden of demonstrating that it is either barbarous or excessive. Gregg v. Georgia, supra, 428 U.S. at 175, 96 S.Ct. at 2926 (1975); See State v. Mitchell, 563 S.W.2d 18, 26 (Mo.banc 1978).
We are mindful that the legislature necessarily considered those who have fallen victim to violent crime within our society. Their lives have been taken without notice and no rigorous procedural safeguards protected them from premeditated attack and death. No crime is more disruptive of peace and order or so violative of the rights of the individual as murder. The spread of violent crime threatens the basic fabric of our Republic and surely all right thinking persons recognize that physical security of its members is among the first objects of an organized society. We cannot say that the death penalty is cruel and unusual punishment for those who unlawfully, willfully, knowingly, deliberately, and with premeditation kill another human being. This view finds wide support in the legislative enactments of sister states, as forty jurisdictions attach a penalty of death to certain categories of murder.
Given the extreme nature of the crime of murder, as well as the fact that the overwhelming majority of American jurisdictions allow imposition of capital punishment in specific instances, we will not substitute our judgment for that of our duly elected legislature in this question of policy. We hold § 565.008, RSMo 1978 does not prescribe cruel and unusual punishment in vio[917]*917lation of art. I, § 21 of the Missouri Constitution.
It is next asserted that the death penalty may not be invoked at Bullington’s second trial because § 565.012.2(7), RSMo 1978, which provides one of the two aggravating circumstances the state seeks to prove at retrial, is unconstitutionally vague and overbroad in violation of the fourteenth amendment.9 The United States Supreme Court, confronted by a similar argument in Gregg v. Georgia, 428 U.S. 153, 201, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859 (1976), as to a Georgia statute (Ga.Code Ann. § 27-2534.-1(b)(7)) with provisions essentially the same as ours, concluded that while it was arguable any murder involves “depravity,” the language need not be construed in such a broad fashion. Hence this statutory aggravating circumstance was not found so wanting in precision that it rendered the capital sentencing procedure capable of arbitrary and capricious decision violative of the eighth amendment. We see no reason to find that our almost identical statutory provision violates the fourteenth amendment particularly when the statute and its application is subject to mandatory review by the Missouri Supreme Court in all capital cases.
Respondent’s final claim is that § 565.014.3(3), RSMo 1978, forbids the prosecution from seeking the death penalty at Bullington’s second trial. That statute mandates proportionality review by this Court and that we determine in each case the excessiveness vel non of the death penalty’s imposition.10 We reject the contention that when a jury in the first trial of a capital murder case imposes a life sentence, assessment of capital punishment by any subsequent jury is invariably excessive. Such argument is little more than a variant of the double jeopardy argument dealt with earlier in this opinion, but respondent, pressing the contention, relies in the main on Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (Ga.1977). Ward is distinguishable from the case at bar in that the evidence had been presented at the subsequent proceeding and that evidence “was essentially the same” as that presented at the first trial where the jury did not recommend a sentence of death. Id., 236 S.E.2d at 366. No evidence has been adduced in the pending retrial of this cause and we will not indulge the speculation urged as to the State’s or defendant’s evidence at a future trial, this notwithstanding the argument that the “notice” contains the same general averments, as the earlier “notice” and despite relator’s statements in oral argument that the state intended to present the same evidence at Bullington’s retrial. The evidence finally adduced depends upon the witnesses, not relator’s expressed intention. Any rule or decisional pronouncement foreclosing on retrial additional proof in mitigation or aggravation within the scope of the notice, is quite unacceptable and we decline respondent’s invitation to invoke such a rule as to a single phase of the proof, i. e., aggravation. More importantly we decline to follow the Georgia court in the construction of Missouri’s death penalty statutes. Ward held that once a jury in a capital case finds life imprisonment, a jury sentence of death in any subsequent trial “is obviously disproportionate.” Id., 236 S.E.2d at 368. We are not persuaded to this point of view for a number of reasons. As noted above, not only may the proof vary in the second proceeding, but the jury which deemed a life sentence appropriate may well have been aberrant. It cannot be said that the [918]*918findings of the first improper jury sound with finality as to aggravation or mitigation as our instructions explicitly allow the juror’s individual values to be considered in the capital sentencing process. See MAI-CR 15.46. Also we have no record of the evidence from the first presentence hearing and cannot say what error may have occurred other than the fact the jury selection process in Jackson County was constitutionally infirm. Further, if such record were before us the fact remains it would be impossible to predetermine the evidence emerging in the new trial and we consider it improper to predecide the result that should flow from the proof. Finally, if defendant’s (respondent’s) argument were accepted that the first jury’s decision on punishment binds any later jury, the argument could be made that if the first jury decided on death as an appropriate sentence the second jury’s consideration would be limited to only that punishment. Needless to say defendant would promptly abjure that result.
The rule is made absolute.
MORGAN and HIGGINS, JJ., concur.
DONNELLY, J., concurs in separate concurring opinion filed.
WELLIVER, J., concurs in result.
BARDGETT, C. J., dissents in separate • dissenting opinion filed.
SEILER, J., dissents in separate dissenting opinion filed.