concurring in result.
I concur in everything in the principal opinion, except its holding that the trial judge did not err in refusing the defendant’s request for an instruction on conventional second degree murder. In so holding, the Court sends the wrong signal to trial judges. The conventional second degree instruction should almost always be given if requested.
The difference between first degree murder (§ 565.020, RSMo 1986) and second degree murder (§ 565.021) is that the latter requires a showing that the defendant acted “knowingly” whereas the former calls for the additional finding of action “after deliberating on the matter.” I have never been sure just how a lay jury goes about distinguishing between these two situations, and had understood that, when there is no issue about the defendant’s presence at the scene, the jury should be instructed about both offenses. The principal opinion, in holding to the contrary, goes well beyond the cases it cites. In all of them the evidence of the casualty was definitive, and the only defense suggestion was that the defendant was not the criminal actor.1 The jury well might think that the description of the events in this record did not establish “deliberating.” Contrary to the intimation of the principal opinion, the defendant has no burden of introducing evidence to justify a lesser submission. It is only necessary that there be a “basis.” Section 556.046.2, RSMo 1986. The “basis” may be found in disbelief of testimony.
The principal opinion, just as the strident questioning from the bench during argu*778ment, confuses what the jury might find with what it must necessarily find to adjudge guilt. The jury did not have to believe the witness who said that she saw the defendant shoot Stewart. It could still find him guilty of homicide in some degree. It cannot be said, as a matter of law, that the jury could not make a rational finding of guilty of conventional murder in the second degree.
The principal opinion is dangerous because it invites trial judges to court error under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). This is an unnecessary risk.
It is fortunate that the error is not prejudicial in this case. If one proceeded with strict logic, failure to instruct on a lesser included offense could not be prejudicial error, because the jury would have no occasion to consider the lesser offense unless it fails to find the defendant guilty of the greater. But, by accepted doctrine, and by the compulsion of Beck v. Alabama, supra, the jury must be instructed about its authority to mitigate unless the court can say as a matter of law that the jury must either convict of the greater offense charged or acquit. The jury must apparently be told that it has the authority to convict of a lesser offense.
Here the jury found all the elements of murder in the first degree, and, had it been disposed to mitigate, it had the alternative, amply supported by the evidence, of felony second degree murder. I cannot see how an additional instruction on conventional second degree murder would have made a bit of difference.
So I hope that trial judges, in the exercise of prudence and caution, will not refuse requested second degree instructions in the expectation that the reviewing court, just as the principal opinion, will labor to save the conviction if the jury assesses guilt. I should think that prosecutors, also in the exercise of prudence, would not resist a submission of conventional second degree.
There is no occasion to discuss the necessity of a manslaughter submission in the context of this case. There are certainly cases on which a manslaughter finding would be completely irrational. Conventional second degree seldom is in this category.
. I rather assume, as the principal opinion does, that the earlier statutes, referring to "deliberation” and "premeditation," are the essential equivalents of the present statutory requirements.