element of conspiracy is agreement.6 Agreement is no part of the substantive offense of capital murder, even when the offense is committed by several persons in collaboration. An instruction on conspiracy, far from being required, would have been absolutely improper because it would have permitted the conviction of the defendant for an offense not charged.
The next complaint has to do with the prosecutor’s argument about “instructing down,” in which he said:
Because [the court] instructs down does not mean that he believes this any more than the other ones....
Objection was promptly made, and the court responded as follows:
“Well, I will sustain the objection to the way you phrased that, what the court may or may not believe, and instruct the jury to disregard that portion.”
There was no motion for mistrial. The court granted the only relief asked for. The remark, furthermore, was not of such consequence as to impede the jury’s proper consideration of the case.
Other complaints are made about the closing arguments, at both phases of the trial. No objections were taken to these. They are not of sufficient gravity to support a claim of plain error, or as to impose on the court a duty of intervening in the absence of objection. State v. Newlon, 627 5.W.2d 606 (Mo. banc 1982), cert. denied, - U.S. -, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982).
The first phase of the trial was free of any substantial or prejudicial error, and the conviction on each count is affirmed.
2. The Punishment Phase
The defendant claims that there was no jurisdictional foundation for the second stage of the trial or for the admission of evidence in aggravation, because no notice of aggravating circumstances pursuant to § 565.006(2), RSMo Cum.Supp.1982, was filed after the filing of the information on which the case was tried. An appropriate notice, and amended notice, were filed after the return of the initial indictment, but this indictment was invalid because it omitted the element of deliberation. See State v. Gilmore, supra, note 1. Defendant argues that this notice was a nullity because of the invalidity of the indictment.
We reject the claim. The purpose of the notice of aggravating circumstances is just what the title implies — to give notice. Defense counsel, by moving to strike the notice which was filed, show that they were aware of the claimed aggravating circumstances. Had objection been made about the time of filing a new identical notice could have been filed. The requirement of notice is purely statutory. We see no reason for holding that the time of giving notice is jurisdictional.
Counsel eloquently argues that we should depart from prior holdings such as State v. Newlon, supra, and should hold that the imposition of capital punishment constitutes cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States, and Article I, Section 21 of the Constitution of Missouri. It is argued that the “standardless discretion” which caused the Supreme Court of the United States to invalidate all or substantially all of the existing death penalty statutes in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), still remains, in spite of the attempt in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and companion cases, to indicate the kind of standards the Supreme Court might be willing to accept. This Court is not willing to depart from its prior holdings, or to invalidate the statute which was borrowed in its essentials from Georgia and
6
Section 564.016, RSMo 1978, provides the following definition of conspiracy: