specially concurring, with whom MACY, Justice, joins.
I concur with the majority in affirming appellant’s conviction. However, while I agree that the so-called Eagan rule articulated in Eagan v. State, 58 Wyo. 167, 128 *1150P.2d 215 (1942), has no application to this appeal, I disagree with the portion of the opinion which would determine that the rule in future cases will be considered a rule of construction rather than a rule of law as a matter of basic proof by now directing that all future appeals premised upon the principle can only be based upon rejection of an offered instruction at trial.
Specifically, I believe the court states a new application in countervention of prior precedents when it concludes:
“An analysis of the language of Eagan v. State, supra, leads to the conclusion that [the Eagan rule’s]sole utility is to assist the jury or the finder of fact in evaluating the evidence. It would follow that the correct application of this concept requires that the defendant who wants to rely upon this language request that an instruction incorporating the language be given. In the future this court will follow the holding in Leeper v. State, [Wyo., 589 P.2d 879 (1979)] and will not consider a claim of error based upon Eagan v. State, supra, unless a request for an instruction is made in the trial court.” (Emphasis added.)
It is obvious that the author of Eagan v. State, Justice Blume, considered the rule to be a rule of law and not a rule of construction. 128 P.2d at 225-226. Importantly, after articulating the Eagan rule, Justice Blume states:
“We turn then to consider the facts and circumstances immediately connected with the homicide, in the light of these rules of law.” (Emphasis added.) 128 P.2d at 227.
It is this fundamental aspect of the rule that the court now reverses sub silentio.
This court formulated the Eagan rule when it set aside a murder conviction and ordered the trial court to resentence Eagan for manslaughter. The facts were these: Eagan and his wife were alone at home. He was sitting in a chair examining a revolver. She was sitting quite close to him, on an ottoman. The, gun discharged, killing her. The State charged Eagan with murder, and sought to prove malice by calling numerous witnesses who testified Eagan sometimes berated his wife, talked about divorce, and shook her. The jury returned a guilty verdict. This court set aside the conviction on the grounds that there was no reason as a matter of law for the jury to have disbelieved Eagan when he testified the shooting was an accident. This was so because Eagan was the sole witness of the crime, his credibility had not been impeached, and his testimony was not improbable or inconsistent. Interestingly, there was no jury instruction at issue in Eagan.
It is the rare case where the elements requisite for the application of the Eagan rule coalesce. We have examined the rule in the following 17 cases, but have applied it in only two. See Cheatham v. State, 719 P.2d 612 (1986); Cutbirth v. State, Wyo., 663 P.2d 888 (1983); Gore v. State, Wyo., 627 P.2d 1384 (1981); Searles v. State, Wyo., 589 P.2d 386 (1979); Leeper v. State, supra, 589 P.2d 379; Leitel v. State, Wyo., 579 P.2d 421 (1978); Doe v. State, Wyo., 569 P.2d 1276 (1977); Cullin v. State, Wyo., 565 P.2d 445 (1977); Smith v. State, Wyo., 564 P.2d 1194 (1977); Raigosa v. State, Wyo., 562 P.2d 1009 (1977); Buckles v. State, Wyo., 500 P.2d 518, cert. denied 409 U.S. 1026, 93 S.Ct. 475, 34 L.Ed.2d 320 (1972); Dickey v. State, Wyo., 444 P.2d 373 (1968); Nunez v. State, Wyo., 383 P.2d 726 (1963); State v. Alexander, Wyo., 324 P.2d 831 (1958), cert. denied 363 U.S. 850, 80 S.Ct. 1630, 4 L.Ed.2d 1733 (1960); State v. Lindsay, Wyo., 317 P.2d 506 (1957); State v. Helton, Wyo., 276 P.2d 434 (1954); and State v. Goettina, Wyo., 158 P.2d 865 (1945). We found the rule applicable in State v. Helton, supra, and Nunez v. State, supra. In both cases, as in Eagan, this court set aside a murder conviction because, as a matter of law, the jury should not have found the defendant guilty of any crime greater than manslaughter.
The majority in this case have now reached the surprisingly new conclusion that Eagan is a rule of construction. In every prior instance where the court has examined the rule it has unequivocally indi*1151cated it to be a rule of law — not construction. Today’s decision flies in the face of this uniform precedent and is completely at odds with Justice Blume’s original articulation.
In defining the Eagan rule in Doe v. State, supra, 569 P.2d at 1279, this court reemphasized:
“ * * * The Eagan rule is an important one, and a diligent search of the record is required to ascertain whether it should be applied. Where the rule is applicable, the defendant’s version of a homicide must be accepted — even in the face of a jury verdict to the contrary. In [appeals from murder convictions], our duty is neither to substitute our opinion for that of the jury, nor to blindly accept the jury’s determination as correct. We are required, in order to sustain the conviction, to find that there is sufficient probative evidence, direct or circumstantial, to prove intent and malice beyond a reasonable doubt.” (Emphasis added.)
In Cutbirth v. State, supra, 663 P.2d at 890, we said:
“We therefore cannot say as a matter of law that appellant’s assertion that the shooting was accidental was unim-peached, nor can we say that his various accounts were inconsistent or probable. These determinations are conditions precedent to a reversal under Eagan.”
We addressed the Eagan rule in Leitel v. State, supra, 579 P.2d at 424-425:
“The Eagan Rule is, of course, helpful to a defendant only in those circumstances where his explanation remains uncontra-dicted either directly or by fair inferences from the testimony and evidence. * * Under the facts of this case, we cannot employ the Eagan Rule to negate the jury’s finding of intent and malice.
* * * * * *
“When deciding whether a set of facts call for reversal under the Eagan Rule, we must invoke the concept reannounced in Doe:
“ < * * * we must accept as true the evidence favorable to the prosecution and give the State the benefit of every favorable inference which may be reasonably and fairly drawn. * * * ’
******
“ * * * We cannot, therefore, say, as a matter of law, that appellant’s version of the shooting remained unimpeached by other and credible evidence — a condition precedent to a reversal under the Eagan Rule.”
And in State v. Helton, supra, 276 P.2d at 443 this court stated:
“ * * * [Ajpplying [Eagan] to the facts of this case, we may fairly say, that the defendant, being the sole living witness to the shooting, her testimony, including that portion describing her condition and the antecedent reasons for it, all tending to show that she was in a highly upset, frightened, and confused emotional and impassioned condition, should not have been rejected by the jury. Her credibility had not been successfully impeached, her story was not shown to be improbable nor inconsistent with the facts and circumstances shown, but it was in fact shown to be reasonably consistent with such facts and circumstances and, therefore, the jury had no right to convict her of a greater crime than that of voluntary manslaughter.” (Emphasis added.)
The above cases plainly illustrate that the application of the Eagan rule to the facts and circumstances surrounding a crime is a matter of law. It is the trial court, and in the appropriate instance the appellate court, which determines whether Eagan applies. This remains true whether or not any jury instruction incorporating Eagan is offered at trial.
The majority opinion in this case states: “In Leeper v. State, supra, the court refused to address an Eagan claim of error because the defendant failed to object to the trial court’s refusal to give the instruction and plain error was not asserted.”
My reading of Leeper suggests that the majority is mistaken when they conclude *1152that this was the ratio decidendi of the case. Accordingly, the court is wrong to adopt this reasoning as part of the holding here in asserting that henceforth this court “will not consider a claim of error based upon Eagan v. State, supra, unless a request for an instruction is made in the trial court.”
The court’s mistake in analysis of Leeper, supra, is manifest from the language of that case:
“Appellant claims error in the failure of the court to give a requested instruction based on the rule of the Eagan case * * to the effect that as Judith [the appellant] was the sole witness to the event, her testimony should be accepted if not improbable or not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, and if her credibility has not been impeached. The court refused.
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“Here, we cannot say that the appellant did demonstrate the violation of a clear and unequivocal rule of law. The Eagan rule requires the defendant to be the sole witness to the crime. Both Judith and [someone else] witnessed the incident here and survived to testify. Others in the bar testified to preliminary matters, the warning, and the shot. We cannot find that the Eagan rule should have been applied, and we are unwilling to extend Eagan to cover the facts of this case. * * * The Eagan rule is not to be applied unless all of the conditions are fulfilled. * * * Here, Judith was not the sole witness.” 589 P.2d at 382.
If an instruction requirement was dispos-itive in the case, the substantive consideration of Eagan in that case was at best obiter dictum. A careful reading would not attribute that intent to the author, Justice McClintock.
In summary it is suggested that we do violence to both established Wyoming criminal law principles and the philosophy of stare decisis in this dictum announcement challenging the Eagan rule for the result intended. I would strongly deny the propriety of “redefining” in a case where the rule itself does not apply, but even more forcefully submit that the court should retain its conception and construction in Doe v. State, supra, 569 P.2d at 1279, and reaffirm that “[t]he Eagan rule is an important one” and not to be similarily discarded by this emasculation.