Judge (dissenting).
With due deference, I am unable to agree that the court should have instructed on the lesser included offense of involuntary manslaughter. I base my conclusion upon the lack of any evidence to warrant submission of that issue. Just recently, we enunciated again the principle that before a party is entitled to an instruction upon a lesser included offense, “ ‘the proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.’ ” United States v. Thompson, 490 F.2d 1218 (8th Cir. 1974).
My reading of the record leads me to conclude that the jury was justified in finding that appellant acted wilfully in killing Mowrer. It is undisputed that the deceased was not armed at any time during the heated argument and altercation between the parties. Conversely, appellant was armed with a loaded rifle which appellant deliberately aimed at the deceased, after the latter defied appellant to shoot him. The only contradictory testimony was the appellant’s *364self-serving statement that he pulled the trigger as the result of “reflex action. It was just an accident. I didn’t mean to shoot h'im.”
As Judge Heaney points out, the court submitted second degree murder and voluntary manslaughter. Thus, although appellant could have been found guilty of voluntary manslaughter which requires only a finding of intent but not of malice, the jury chose to decide that appellant was motivated by intent and malice in killing the deceased.
I am conscious that the district court imposed a rather heavy penalty upon the appellant, but that factor should not dictate reversal for another trial.