The opinion
BLACKMAR, Judge,
concurring in result.
I.
The rambling narration of the history of the construction of § 571.015, RSMo 1986, is quite beside the point. The discussion should start, rather than ending, with Missouri v. Hunter, 459 U.S. 359 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983), which held that, in a single trial, cumulative punishments could be assessed for a felony (such as armed robbery) and for armed criminal action for the use of a dangerous instrument or deadly weapon in the perpetration of that felony. By this analysis, the underlying felony is in effect a lesser offense included within the charge of armed criminal action. I rather agree that Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980) and Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) preclude the separate trial of the greater offense, after the lesser has been separately tried, regardless of the result of the initial trial.
I accept the statement in the principal opinion that § 565.004.2, RSMo 1986, authorizes the trial of a homicide offense, including murder in the first degree, with a nonhomicide offense such as armed criminal action. In any event the charges could have been brought in the same indictment or information, Rule 23.05, and tried jointly pursuant to Rule 24.07. Inasmuch as the counts could have been tried together, the state should not now be allowed to try the armed criminal action separately.
For another reason I believe that the writ of prohibition should be made absolute. The “dangerous instrument” relied upon consists of tape and cloth. The state argues that an instrument which produces death may be found to be dangerous if it is used in such a way as to cause death or serious injury. This, however, requires a showing of a purpose of so using the instrument. The jury in the initial trial declined to find that the defendant acted with the purpose of causing death or serious injury when it acquitted him of the charge of murder in the second degree. By the verdict of guilty of involuntary manslaughter it found only that he had acted “recklessly” in using the tape and the gag. I do not believe that the armed criminal action statute was intended to cover a situation of the kind shown by this record.
The prosecutor argues that no particular state of mind is required under § 571.015, citing State v. Miller, 657 S.W.2d 259 (Mo.App.1983), and State v. Helm, 624 S.W.2d 513 (Mo.App.1981). It is suggested that it only need be shown that the defendant acted recklessly. Miller involved a firearm and Helm a machete. Whatever the case might be as to these weapons, which could be said to be inherently dangerous, the instrument charged in the information is dangerous only if used with the purpose of causing death or bodily harm. The first jury has foreclosed a finding of any such purpose.
By the state’s argument a defendant convicted of involuntary manslaughter through reckless operation of an automobile could be separately tried for armed criminal action for the same killing. I do not believe that the legislature had this kind of a situation in mind when it passed the armed criminal action statutes.
*77 It is unusual to terminate a criminal prosecution by writ of prohibition, but I am convinced that the underlying prosecution lacks sound legal basis. I therefore join in making the preliminary rule absolute.