George Clifton Gilmore was convicted by a jury of capital murder, section 565.001 RSMo 1978, and was sentenced to death after the jury found as an aggravating circumstance that he committed the offense for the purpose of receiving money or any other thing of monetary value. ยง 565.012.2(4) RSMo Supp. 1981-82. Judgment was rendered accordingly. Appellant charges the trial court erred in rendering judgment because the indictment was fatally defective inthat it did not charge the essential element of deliberation; in fixing his punishment at death because the only statutory aggravating circumstances found by the jury was improperly submitted; and because fixing defendant's punishment at death while allowing equally responsible co-participants to plea bargain for significantly reduced sentences violated the eighth amendment and resulted in disproportionate sentences prohibited by section 565.014.3(3) RSMo 1978. Dispositive of this appeal is the absence from the indictment of any allegation that defendant acted deliberately in the capital murder for which he stands convicted. Because of the failure of the State to charge this essential element of the offense of capital murder, the judgment must be reversed and the case remanded.
