dissenting: I respectfully dissent. I have no quarrel with the principles of law stated in the majority opinion. I disagree with the application of those principles to the facts and circumstances of this case. In my judgment the defendant here was denied a fair trial because the trial court failed to give an instruction on the lesser included offense of voluntary manslaughter (K.S.A. 21-3403). In State v. Clark, 214 Kan. 293, 521 P.2d 298, we held that it is the duty of a trial court to instruct the jury not only as to the crime specifically charged in the information but also with respect to such lesser offenses included therein as the evidence may justify. We further stated that the accused has the right to have his theory of the case presented to the jury under *310appropriate instructions, where there is support in the evidence therefor, even though the evidence may be weak and not conclusive and the testimony of the defendant alone, if tending to show a lesser degree of crime, is sufficient to require the court so to instruct. In the instant case the trial court instructed the jury on the offense of murder in the second degree (K.S.A. 21-3402) and involuntary manslaughter (K.S.A. 21-3404). Both the state and the defense requested an instruction on voluntary manslaughter (K.S.A. 21-3403). The basic distinction between second-degree murder and voluntary manslaughter, other than the penalties, is the presence or absence of malice. (State v. Wilson, 215 Kan. 437, 524 P.2d 224.) The district court, by its refusal to give the requested instruction, found as a matter of law there was not sufficient evidence of a killing in the heat of passion so as to negative the existence of malice and to justify an instruction on voluntary manslaughter. In my judgment this was prejudicial error.
There was ample and substantial evidence from which the jury might find the following facts to be true:
(1) The killing was not accomplished with a deadly weapon. Mrs. Coop died as a result of a severe beating.
(2) Both the defendant and his deceased wife were alcoholics with severe alcohol problems existing over a long period of time.
(3) At the time the homicide occurred both the defendant and his wife were extremely intoxicated. The defendant had been drinking for several days. Several hours after the killing, when he was arrested, the undisputed evidence disclosed that the defendant had a strong odor of alcohol on his breath; his speech was slow; he was confused in regard to the lapse of time; he was unsteady on his feet. Defendant himself testified as to alcoholic amnesia on the night the homicide occurred. An autopsy was performed on Helen Coop which showed a .208 level of alcohol in her blood. Following the homicide, police officers found ten or eleven large empty whiskey bottles in the kitchen.
(4) The defendant and his wife apparently had had prior domestic fights arising from her drinking. There was testimony that when Mrs. Coop was drinking she became violent and became loud and used abusive language. The police had been called to the Coop home on several occasions because of disturbances.
*311(5) There was some kind of disagreement or argument between the defendant and his deceased wife which undoubtedly brought about the homicide. Recause of his amnesia, the defendant had no real memory as to the nature of the disagreement or how the homicide occurred. The defendant testified that he did not remember striking his wife at all on the night in question, and that it was not until two or three days after the incident that he really understood what had happened.
(6) The undisputed evidence showed that a violent fight occurred which could best be characterized as a drunken domestic brawl. A laboratory investigator for the Wichita Police Department testified that there were signs of a struggle in the house. He picked up hair of either Mr. or Mrs. Coop in the wash sink in the kitchen, behind the rocker in the living room, and on the back porch. The defendant’s hair was found under his wife’s ring on her finger. Other evidence of a fight consisted of a broken mop handle and broom handle and, of course, the multiple bruises and abrasions about the victim’s body. Apparently some time in the course of the evening the defendant tried to revive his wife, because water had been thrown on her body.
My concern in this case is that the trial judge took upon himself the function of the jury by deciding that the defendant could not be guilty of voluntary manslaughter. This was done even though a vigorous prosecutor suggested to the court that there was adequate evidence to justify an instruction on voluntary manslaughter. At the time the instructions were being considered the prosecutor stated to the court:
“Mr. Arbuckle: I have no objection to the proposed instructions. I would suggest to the Court that we should perhaps consider, and we would ask, an instruction on voluntary manslaughter. I feel there is some evidence in this case of a quarrel between the — the defendant in this case, in that Mr. Coop testified that one of the things he remembered was having a disagreement with his wife as he was standing in the doorway of the kitchen, and this was prior to the time she was injured. Would also point out I think the severity and the condition of Mrs. Coop’s body indicates that certainly perhaps this type of beating would be inflicted in a heat of passion or in a quarrel situation. That’s the only requested instruction I would have.”
In spite of all of the evidence which I have outlined above, the trial court in denying defendant’s motion for a new trial made the following observation in regard to the lack of evidence that the death resulted from a killing in the heat of passion:
*312“THE COURT: Well, it was my opinion at the time of the trial and it is still my opinion that to come within the framework of voluntary manslaughter, the jury or any trier of the facts, be it Judge or jury, would have to indulge in conjecture. There is no evidence that this death resulted from a quarrel or in the heat of passion. Taking the defendant’s defense into consideration, there was certainly no showing of any heat of passion or any quarrel that would give rise to a beating that would result in death. And I agree that could have happened. Also, someone else could have done it. But, as I indicated at the trial, if the law is such that the juries are going to be allowed to just guess at lesser offenses so that they can at times get off the hook by guessing themselves into lesser offenses without any real evidence being presented to them, then the Supreme Court should reverse this conviction, but if we are going to take jurors as twelve reasonably intelligent people who are a part of this community and ask them to judge the facts in a case, then I don’t think it is fair or right that we get too far into guesswork and conjecture.
“I see no error committed during the course of the trial, and the motion for new trial is overruled.” (Emphasis supplied.)
It appears to me that the trial judge may have, for the moment, forgotten who had the burden of proof in the case.
The trial court and the majority of the court on this appeal have concluded that there was not sufficient evidence to show that the killing was done in the heat of passion. They have reached that conclusion because in their judgment there was no evidence of any provocation sufficient to arouse the passion of the defendant causing him to kill his wife. I simply cannot, in good conscience, accept such a conclusion. In my judgment there was ample evidence to show that a violent domestic brawl occurred between a drunken husband and wife and that a homicide was committed under circumstances indicating a killing in the heat of passion. The case should be reversed and remanded to the district court for a new trial so that the jury might consider a verdict of voluntary manslaughter.
Owsley and Holmes, JJ., join in the foregoing dissenting opinion.