concurring in part and dissenting in part:
On this record I am convinced that the jury should have received an instruction on the lesser included offense of voluntary manslaughter. I agree, however, that the claim of misconduct by the prosecutor and the witness does not require reversal.
The Supreme Court has emphatically said that “. . . it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844. And while some courts have said that the decision of whether there is enough evidence to justify a lesser included offense charge rests within the sound discretion of the trial judge, United States v. Busic, 592 F.2d 13, 25 (2d Cir.), I cannot agree that the test is one of discretion. If there is some evidence to support a lesser included offense and the defendant requests such a charge, the court has no discretion to refuse the instruction. United States v. Pino, 606 F.2d 908, 914 (10th Cir.); 8A Moore’s Federal Practice, If 31.03. For the trial court in effect to weigh the evidence runs counter to the rule laid down by the Supreme Court in Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980. Although the circumstances there were much stronger for the defendant, including the fact that both men were armed, the court there stated (id. at 314-15, 16 S.Ct. at 839):
The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder. . The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter oran act performed in self-defense, and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court. (Emphasis added)
In United States v. Comer, 137 U.S.App.D.C. 214, 219, 421 F.2d 1149, 1154 (D.C. Cir.) the court reminded us that “the jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested.” Moreover, this court has previously held that a defendant is entitled to instruction on any theory of defense finding support in the evidence and the law, and that a refusal of such instructions is reversible error. United States v. Swallow, 511 F.2d 514, 523 (10th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66. Further, the presence of such evidence requires an instruction on a theory of defense “[ejven though the evidence may be weak, insufficient, inconsistent or of doubtful credibility.” Id. at 523.
*1302The majority “observe[s], without deciding,” that had defendant not testified, especially to his assertion that the shooting was an accident, “the evidence viewed in the light most favorable to Chapman, vis-a-vis the availability of the instruction, might have warranted the giving of the requested instruction on manslaughter.” This statement seems to imply that if the defendant relies primarily on the defense that the shooting was accidental, he cannot also rely on an alternative defense that the shooting was at most manslaughter since it occurred in the “heat of passion.” Our opinion in United States v. Smith, 521 F.2d 374, 377 (10th Cir.), does give support to this statement on inconsistent positions. I am convinced, however, that the controlling principle as recognized by the Supreme Court in Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980, leaves no room for refusing a lesser included offense charge on such a theory in this case. In Stevenson, id. at 322-23, 16 S.Ct. at 842-843, the Court reasoned that the evidence there might support both a position of self-defense, showing that no crime at all was committed, and yet also it could support a finding of shooting under the influence of passion and without malice so as to be manslaughter and not murder. The Court referred to examining the testimony of “some of the witnesses”, id. at 322, 16 S.Ct. at 842, and said that the question was for the jury “. . . if there be any evidence fairly tending to bear upon the issue of manslaughter . . . .” Id. at 323, 16 S.Ct. at 843. (Emphasis added).
We note that in Belton v. United States, 127 U.S.App.D.C. 201, 206, 382 F.2d 150, 155 (D.C. Cir.), it was said that the evidence to support a lesser included offense instruction is sufficient “even though this depends on an inference of a state of facts that is ascertained by believing defendant as to part of his testimony and prosecution witnesses on the other points in dispute.” (Emphasis added). This principle is more fully stated in United States v. Huff, 143 U.S.App.D.C. 163, 168, 442 F.2d 885, 890 (D.C. Cir.):
The jury is not confined in its findings to matters that are directly set forth in testimony but may base an inference of lesser offense on a “reconstruction that is fairly inferable” from the evidence, gleaned perhaps by putting together some items from one witness, some from another, and some from the jury’s own experience and sense of probabilities. And so the judge took into account that the jury might reasonably make findings different from the version set forth in anyone’s testimony. (Emphasis added)
And as stated in Stevenson v. United States, 162 U.S. 313, 322, 16 S.Ct. 839, 842, 40 L.Ed. 980:
The fact that the evidence might raise an issue as to whether any crime at all was committed is not in the least inconsistent with a claim that it also raised an issue as to whether or not the plaintiff in error was guilty of manslaughter instead of murder.
To the trial judge and to us the evidence to support the lesser offense charge may seem weak and unconvincing. Nevertheless the jury could, I feel, have rejected the defendant’s testimony that the shooting was accidental and yet believed and been persuaded by that part of the testimony that the deceased had stolen the pickup and money from the defendant (III R. 218-19), had heckled him on frequent occasions in the meantime about the thefts, had just denied owing him any money, and immediately prior to the shooting had taunted the defendant with both words and gestures (id. at 242), while the defendant was in a drunken condition.1 From these circum*1303stances the jury could have drawn an inference that the shooting was done “[u]pon a sudden quarrel or heat of passion,” 18 U.S.C. § 1112, although to the court the evidence may have been “overwhelming to show that the killing was in fact murder.” Stevenson, 162 U.S. at 314, 16 S.Ct. at 839.
Since there was some evidence to warrant a manslaughter conviction, the lesser offense instruction should have been given. On this ground I would reverse.
. It is true that some opinions refer to evaluating the circumstances of the average sober man. E.g., Hart v. United States, 76 U.S.App.D.C. 193, 130 F.2d 456 (D.C. Cir.). However, numerous more recent decisions have noted the factor of drunkenness as a part of the total circumstances in deciding whether a manslaughter or lesser included offense was committed as opposed to murder. E.g., DeMarrias v. United States, 453 F.2d 211 (8th Cir.); United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (D.C. Cir.), and United States v. *1303Dixon, 135 U.S.App.D.C. 401, 419 F.2d 288 (D.C. Cir.). In fact, the majority here has commented on the factor of drunkenness, on which there was substantial evidence in this record.