(concurring).
I concur in the principal opinion and desire to state my reasons for so doing.
State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971) was decided before this case was tried. The instant case was tried in May 1973 and was on a charge of murder in the first degree. The court gave a conventional first-degree-murder instruction but did not give a conventional second-degree-murder instruction nor a manslaughter instruction. Appellant complains of the refusal to give a manslaughter instruction.
In State v. Johnson, 505 S.W.2d 94 (Mo.1974), the defendant was convicted of murder in the first degree under a conventional first-degree-murder instruction. The case was based upon circumstantial evidence. *284On appeal the defendant complained of the failure of the court to give a conventional murder second-degree instruction. The point was sustained and the case reversed and remanded for new trial but in so doing the opinion said that, “This is not a case in which, under the evidence, the accused is guilty of murder in the first degree or is entitled to be acquitted. See, for example, State v. Crow, 486 S.W.2d 248 (Mo.1972); State v. Terry, 472 S.W.2d 426 (Mo. banc 1971).”
Thus, it is seen by State v. Johnson, supra, that at the time the instant case was tried, it was still the view of this court that it was not error to fail to instruct on murder second in direct-evidence cases if the case was of the Crow or Terry type.
State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), was a circumstantial-evidence second-degree-murder case in which the court did instruct on manslaughter. This court affirmed citing, inter alia, State v. Johnson, supra. Stapleton also discussed the role “provocation” plays in second-degree-murder cases and held that there need not be evidence of provocation in order to support an instruction on manslaughter.
In my opinion, Johnson and Stapleton stand for the proposition that in circumstantial-evidence-murder cases the trial court must submit on the lesser conventional homicide instructions.
In State v. Clough, 327 Mo. 700, 38 S.W.2d 36 (1931), State v. Smith, 445 S.W.2d 326 (Mo.1969), State v. Hubbard, 484 S.W.2d 224 (Mo.1972), State v. Jackson, 496 S.W.2d 1 (Mo. banc 1973), and State v. Patterson, 484 S.W.2d 278 (Mo.1972), the court decided the issue of whether it was error to refuse to give a manslaughter instruction in a second-degree-murder prosecution by considering whether there was evidence of a sudden unexpected assault, encounter, or provocation tending to excite the passion beyond control. In my opinion, Stapleton held that the lack of evidence of provocation does not warrant a refusal to give a manslaughter instruction and to that extent inferentially overruled holdings to the contrary in earlier cases and, therefore, I do not agree that Clough controls the issue of the manslaughter instruction in the instant case. State v. Stapleton, supra, at 299.
In my opinion, the decision in the instant case is controlled by State v. Johnson, supra. Johnson described the factual situation in which the court was required to give a lesser homicide instruction (murder in the second degree) and the situation described therein was a circumstantial-evidence case. Stapleton followed Johnson and was also a circumstantial-evidence case. The instant case is a direct-evidence case and is not specifically included within the holdings of Johnson or Stapleton.
I also do not believe the court should generally give retroactive effect to changes in the MAI-CR instructions and specifically would not do so here. To adopt a policy of giving retroactive effect to changes in instructions would seriously impede meritorious advancements in the procedural law of this state because of the predictable concern over invalidating convictions which were supported by the evidence, as this one is, under proper submission as of the time the case was tried.
I, therefore, concur.