concurring in result.
There is a mystery as to why the evidence that the victim struck the defendant, knocking him to the ground, which was held to require a self-defense instruction in the first trial, was not offered in the second. If the witness were unavailable, his sworn testimony could have been read into evidence.
It would have been better for all concerned if the trial judge had given the requested instruction on self-defense. There is a risk in refusing the request. The claim of self-defense would undoubtedly have been as unconvincing to the jury as it was to the judge. Yet I agree with the principal opinion, in concluding that there was no legal error in refusing the request.
I also agree that the sentence was not inappropriate, because of the “serious as-saultive conditions.” The record indicates that the defendant had a disposition toward deadly force over trivial matters, when he had the means at hand. The jury could have found that there was much more than a mere “barroom altercation,” and that the armed defendant sought the victim out, deliberately provoking a confrontation in which he intended to use his weapon to kill. It is not necessary to decide whether the murder was committed “in a wantonly vile and horrible manner.”