(concurring).
I concur in the principal opinion but in doing so would assign an additional ground for holding that failure of the trial court to instruct on manslaughter does not entitle defendant to a reversal and new trial.
Defendant was charged with first degree murder. The trial court instructed the jury on both first and second degree murder. The jury refused to convict defendant of the lesser offense of second degree murder and instead convicted him of first degree murder, necessarily finding deliberation and premeditation. That being true, it is apparent the jury would not have convicted defendant of the lesser offense of manslaughter. Hence, the error, if any, in failing to instruct on manslaughter was harmless and would not entitle defendant to relief. State v. Foran, 255 Mo. 213, 164 S.W. 215 [4] (this case was overruled later on another point but not on the above proposition). Even constitutional error does not entitle a defendant to a new trial if such error can be declared harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241.