concurring.
I fully concur in the principal opinion and write in an effort to demonstrate State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), was ill-conceived and it and its progeny should be squarely overruled.
Stapleton announced the automatic submission rule in homicide cases 1 and substantially altered the law of manslaughter in the process. It has been stated by another distinguished jurist2 that it is more important for a court to be correct in its decisions than it is to be consistent. Accordingly, I believe the automatic submission rule should be cast aside and pre-Stapleton standards applied in the submission of manslaughter in Missouri.
The standard for reviewing defendant’s claim was announced in Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979):
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby, (emphasis added)
Thus, to substantiate his claim in the instant case defendant must prove “material *505prejudice” from his trial counsel’s errors. See Langston v. Wyrick, 698 F.2d 926, 930 (8th Cir.1982). Failure to prove prejudice, is by itself, enough for a court to deny an ineffective assistance of counsel claim. Harkins v. State, 653 S.W.2d 255, 256 (Mo.App.1983). Assuming, arguendo, that counsel failed to exercise that degree of skill and diligence as would a reasonably competent attorney under similar circumstances, I cannot agree that defendant carried his burden. He argues that counsel should have requested a manslaughter instruction at trial and having failed to do so counsel should have raised the issue in a motion for new trial and on appeal.
Under Stapleton defendant was automatically entitled to a manslaughter instruction. The cases following Stapleton indicate that had counsel included the issue in a request for a new trial it is likely that relief would have been granted.3 However, I submit Stapleton is based upon faulty logic and a misunderstanding of Missouri homicide law.4 It is apparent from a review of the facts in the instant case and an enlightened view of Missouri’s homicide law that a manslaughter instruction should not have been given because it was not supported by the evidence. Accordingly, any request for a new trial, if made, should have been denied. It cannot be said, therefore, that defendant was prejudiced by counsel’s actions in the instant case.
Manslaughter is an intentional killing without malice and premeditation that is neither justifiable nor excusable. See State v. Sturdivan, 497 S.W.2d 139, 142 (Mo.1973).5 In State v. Williams, 442 S.W.2d 61 (Mo. banc 1968), and earlier cases,6 we held that if the state established an “intentional killing of a human being by another where a deadly weapon is used by him at a vital part of the body,” a presumption arose that the killing was done with malice. Id. at 64. This presumption of second degree murder is consistent with the traditional view at common law.7
Under the traditional view the state had the initial burden to show that the defendant intentionally killed the victim. If the state met this burden, a presumption arose that the killing was done with malice and a second degree murder instruction was warranted. In order for the defendant to receive a manslaughter instruction he had to rebut the presumption of malice by producing evidence of mitigating or extenuating circumstances, referred to as adequate provocation, surrounding the intentional killing.
Prior to State v. Williams, in order to show adequate provocation by the victim, *506the defendant had to introduce evidence of physical violence to his person; mere proof that the defendant feared the victim was not sufficient provocation.8 Williams broadened the definition of adequate provocation by eliminating the requirement of physical violence to defendant’s person. However, Williams did not alter the presumption of malice arising from a showing that the killing was intentional. Thus, absent substantial evidence of adequate provocation in the case, an instruction on manslaughter was not proper. 442 S.W.2d at 64.9
In State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971), we stated that the trial court could instruct on second degree murder and not manslaughter only if it found as a matter of law, “an entire absence of evidence upon which to rest a verdict of guilty of manslaughter.” Id. at 538. Ayers continued to recognize the common law presumption of malice but stated that it could be rebutted in a particular case due to the evidence.10 Under Williams the defendant had the proof of facts burden of constructing a scenario of provocation or heat of passion to prove he was entitled to a manslaughter instruction. Ayers relieved the defendant of this burden and made it the trial judge’s duty to determine if the issue of adequate provocation arose and if so to instruct on manslaughter. However, it is important to note that under the Ayers standard “[m]any cases will lack evidence warranting a manslaughter instruction.” Venker, supra, 48 Mo.L.Rev. at 969.
Stapleton abolished the long standing presumption of second degree murder in Missouri and announced the automatic submission rule for manslaughter.11 However, the holding in Stapleton is based upon questionable reasoning and a serious misunderstanding of our earlier decisions.
Stapleton stated that Ayers held that the trial court is required to submit manslaughter in second degree murder cases even though there is no evidence of lack of malice or premeditation — no evidence of provocation. 518 S.W.2d at 300. Staple-ton reasoned: “Ayers requires this because it is the jury’s function to decide the fact question of whether the defendant acted with premeditation and malice and that fact question does not exclusively depend upon the existence or nonexistence of provocation.” Id. Clearly, this is not the holding in Ayers. Paul Venker, in his scholarly article explains:
Stapleton truly abolished the presumption of second degree murder ... Staple-ton cannot be said to have properly relied on Ayers for this result. Ayers cut the ties to common’ law manslaughter and only required a trial judge to determine whether as a matter of law a juror could find from the evidence in the record that the defendant was of such an excited and impassioned state of mind that he did not possess the malice and premeditation necessary for murder. Stapleton was an extension of Ayers which misconceived the substantive law *507of manslaughter and second degree murder as Ayers declared it.
48 Mo.L.Rev. at 970.
This misinterpretation of Ayers by Sta-pleton was soon recognized by this court in State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975), cert. denied 426 U.S. 910, 96 S.Ct. 2234, 48 L.Ed.2d 835 (1976). In Mudgett the court refused to apply Stapleton retroactively to require automatic instruction on manslaughter in homicide cases arising pri- or to the March 1, 1975 effective date of the automatic submission rule pursuant to MAI-CR amendments. The court in Mud-gett noted:
Stapleton construed Ayers to require that, where conventional murder instructions are supported by the pleadings and evidence and are given, there must be an automatic submission of manslaughter. This requirement has been in effect since March 1, 1975 (See MAI-CR 6.02, Caveats). This requirement was not instituted by Ayers. Any contrary implication from the language appearing in Staple-ton is unfortunate if automatic submissions were made prior to March 1, 1975.
* sfc * ⅜ s-c *
The significance of Ayers lies only in its emphasis on ‘the relative functions of judge and jury in a felonious homicide case,’ and in its holding that it is the duty of the judge to instruct on lesser grades of homicide unless he can declare, as a matter of law, that there is no evidence to support such submission.
Id. at 281.
From the foregoing it is obvious that the automatic submission rule is a procedural rule promulgated by MAI-CR and not a rule of substantive law announced in Sta-pleton. The defendant in the instant case urges us to treat the automatic submission rule as a substantive rule of law announced in Stapleton. Indeed, such a conclusion is primary to defendant’s position that he was materially prejudiced. If Stapleton did have this effect, it did so only by seriously misstating the holding in Ayers and prior cases.12
Defendant cites several post-Stapleton cases granting relief on direct appeal where the trial court failed to follow the automatic submission rule. Defendant reasons that these cases support his contention that Stapleton mandates the automatic submission of manslaughter in all cases as a rule of substantive law. However, the contrary is evident upon examining State v. Flenoid, 617 S.W.2d 75 (Mo. banc 1981), the leading case referred to. In Flenoid the court explained:
[Compliance with the seemingly clear instructions just noted [MAI-CR 15.18] would contribute more to the orderly administration of justice than have the efforts of this and other appellate courts to approve or disapprove of the absence thereof in specific cases.
Id. at 75. It seems evident that the court’s decision rested upon MAI-CR and not the holding in Stapleton. Furthermore, the rationale is based upon administrative simplicity rather than considerations of prejudice to defendant caused by the failure to so instruct.13
In support of its decision, the court in Stapleton also relied upon the earlier case of State v. Johnson, 505 S.W.2d 94 (Mo.1974). Johnson held that the trial court erred in not instructing on second degree murder in addition to first degree murder. Johnson stated that the principal differ*508ence between first and second degree murder is the element of “deliberation” which is present in first degree. Id. at 95.14 Noting that the case was based upon circumstantial evidence, the court in Johnson reasoned that the jury could infer deliberation from the evidence or reject that inference and find the evidence supported second degree murder. Id. at 95-96.
Stapleton tried to apply the Johnson analysis distinguishing first and second degree murder to the elements of malice and premeditation which distinguish second degree murder from manslaughter. The court in Stapleton reasoned:
Johnson and the instant case are circumstantial evidence cases. The principal distinction between second degree murder and manslaughter is that the former requires a finding of intent to kill (premeditation and malice aforethought). If the accused intended to kill the deceased, then he is guilty of murder in the second degree (unless provocation prevents conviction of murder in the second degree). The intent to kill may be inferred from the circumstances. In Johnson the only evidence of deliberation was circumstantial. Here, the only evidence of intent to kill is circumstantial. The evidence authorized an inference of intent to kill but did not compel such a finding. If the jury did not find the element of intent to kill, then the defendant could still be guilty of manslaughter because manslaughter does not require that element.
518 S.W.2d at 300-01.15
Stapleton’s attempt to apply the logic of Johnson to the distinction between second degree murder and manslaughter fails. Under Stapleton the jury is without any guidance in determining whether the defendant had the requisite malice required for second degree murder. In Johnson, evidence of deliberation was required as a precondition to the jury receiving a first degree instruction. If the jury did not accept this evidence, it could find second degree murder. The same logic does not work when going from second degree murder to manslaughter because the latter requires evidence of adequate provocation. The presumption of malice exists whenever the state introduces evidence that the killing was an intentional one. The state meets this burden by showing that the killing was committed with a deadly weapon to a vital part of the body. The defendant must introduce evidence of mitigating circumstances, called adequate provocation, to rebut this presumption. The jury is not free to accept or reject the inference of malice without such evidence.
The absurdity and ultimate tragedy of the automatic submission rule is that it requires the giving of a manslaughter instruction even in cases like the present where it is clear that as a matter of law there is no evidence to support such a verdict. The court in State v. Love, 546 S.W.2d 441 (Mo.App.1976), affirmed defendant's convictions on direct appeal and summarized the murder scene:
Finding no one in the living room, he [the father of the female baby-sitter] went into the kitchen area. There he observed the body of Jeffrey Berger lying in a pool of blood on the kitchen floor. Jeffrey’s throat was cut and there were multiple wounds about his head and face. He also observed his daughter lying in a pool of blood on the kitchen floor to the right of Jeffrey Berger. Sheilia’s throat was also cut and, in addition, she *509had multiple wounds about the head and face, multiple ‘puncture’ wounds in her right side, and bruises on the right thigh.
Id. at 444-45 (emphasis added). The court also noted that at the time of their deaths Jeffrey Berger was two and one-half years old and Sheilia Curtright was fourteen years old. Id. at 444.
Stapleton and the automatic submission rule require the jury to speculate as to how the homicide may have occurred and then arbitrarily determine defendant’s mental state. The result is often shocking to concepts of justice.16 In the instant case the state’s evidence clearly showed an intentional killing committed by a deadly weapon used to cut the victim’s throats. The traditional view is that such proof raises a presumption of second degree murder. The law prior to March 1, 1975, requiring some evidence of provocation before a manslaughter instruction was warranted. If the court declared an entire absence of evidence to support a manslaughter instruction, the instruction was not required. I believe that a return to such a standard is the correct decision and for that reason I would deny defendant’s claim on the basis that he was not prejudiced by the failure of the trial court to instruct on manslaughter or the failure of counsel to raise the issue on appeal.
. The automatic submission rule requires that (1) an instruction on manslaughter must be given when any higher homicide offense is submitted, and (2) a conventional second degree murder instruction must be given in all cases in which the court instructs on capital murder. See Venker, Missouri Homicides: Lesser Included Offenses and Instructing Down, 48 Mo.L.Rev. 935, 959 n. 130-31 (1983). Criticism of the automatic submission rule in this opinion is limited to the rule's application with respect to manslaughter instructions.
. See Liddell v. Missouri, 731 F.2d 1294 at 1331 (8th Cir.1984) (Gibson, J., concurring in part and dissenting in part).
. But see State v. Kurtz, 564 S.W.2d 856, 862 (Mo. banc 1978) (finding no plain error on direct appeal where the trial court failed to follow that automatic submission rule).
. For earlier criticism of Stapleton, see State v. Martin, 602 S.W.2d 772, 774-80 (Mo.App.1980).
. The statutory definition of manslaughter has remained relatively unchanged in Missouri since 1919. See Venker, Missouri Homicides: Lesser Included Offenses and Instructing Down, 48 Mo.L.Rev. 935, 942-43 (1983). At the time of defendant’s trial, the statutory definition of manslaughter provided: "Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.” § 565.005, RSMo 1978. This section is effective until July 1, 1984 when it is repealed and replaced by § 565.023, pursuant to S.B. 276 (1983). The new manslaughter statute provides: "A person commits the crime of voluntary manslaughter if he: (1) Causes the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of subsection 1 of section 565.021, except that he causes the death under the influence of sudden passion arising from adequate cause; or (2) Knowingly assists another in the commission of self-murder.” Under this new scheme it is clear that there must be evidence of provocation before an instruction on voluntary manslaughter is submitted. See § 565.023.2, RSMo (Cum. Supp.1983). See also Venker, supra at 978-81.
. See Note, Criminal Law—Instructing on Manslaughter — Eliminating the Presumption of Malice in Missouri Homicide Cases, 38 Mo.L.Rev. 105, 106 n. 8 (1973) (collecting cases between 1856 and 1968 on the presumption of malice).
. See Note, Criminal Law — The Abolition of the Presumption of Malice and Second Degree Murder, 34 Temp.L.Q. 336 (1961) (discussing the historical development of the presumption of malice at common law).
. See e.g., State v. Haynes, 329 S.W.2d 640, 645-46 (Mo.1959).
. In Williams the court stated that when the evidence was viewed in a light most favorable to the defendant, the jury could find that the victim suddenly shot at defendant at close range without warning and that defendant fired back without malice and certainly without deliberation and killed the victim. 442 S.W.2d at 64. The court reasoned that this was adequate provocation even though the victim’s first shot missed the defendant and thus failed to inflict violence to his person.
. In Ayers, evidence was produced indicating that the victim was a boyfriend of defendant’s wife. The victim was found shot in his apartment. Witnesses testified they heard sounds indicating a struggle in the victim’s apartment and then two shots were fired. The defendant was seen leaving the victim’s apartment with blood on his shirt. The court instructed on both second degree murder and manslaughter. The jury found the defendant guilty of manslaughter. The court in Ayers rejected defendant’s contention on appeal that there was no evidence to support the manslaughter instruction. 470 S.W.2d at 537-38.
.Amendments to MAI-CR were also made to reflect the holding in Stapleton. See MAI-CR 6.02, Notes on Use, p. 6-lc: MAI-CR 6.08, Notes on Use 5; MAI-CR 1500, Notes on Use 2, 3a and 3b.
. Regardless, both the procedural mandate of MAI-CR and any substantive mandates in Sta-pleton requiring automatic submission of manslaughter should not be followed.
. Even more telling is the decision in State v. Kurtz, 564 S.W.2d 856 (Mo. banc 1978), finding no manifest injustice under plain error review where the trial court failed to follow the automatic submission rule. In Kurtz v. State, 645 S.W.2d 7 (Mo.App.1982), the defendant next attacked the trial court's failure to instruct on manslaughter and his counsel’s failure to raise the issue in a motion for new trial as grounds for post-conviction relief alleging ineffective assistance of counsel. Relief was denied on the basis that defendant did not prove prejudice from counsel’s actions. Id. at 8-9. Neither of the preceeding holdings would be possible if Stapleton were truly a case of substantive law requiring automatic submission in all cases.
. "Deliberation is found when an act is performed with a cool and deliberate state of mind.” State v. Morris, 639 S.W.2d 589, 591 (Mo. banc 1982), cert. denied, — U.S. -, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).
. Stapleton interpreted the holding in Johnson to require that the trial court give a lesser homicide instruction in every "circumstantial-evidence" case. If Johnson so held, it overruled the earlier case of State v. Cuckovich, 485 S.W.2d 16, 26 (Mo. banc 1972). Stapleton's view of Johnson was clearly rejected by this Court in State v. Franco, 544 S.W.2d 533, 537 (Mo. banc 1976), which explained: "If Johnson was intended to mean that a trial court is required to give a lesser homicide instruction in a ‘circumstantial-evidence’ case, it must be overruled. The decision reached by the Court en Banc in Cuck-ovich may not be overruled by an opinion written in a Division of this Court.”
. See e.g., State v. Sager, 600 S.W.2d 541 (Mo.App.1980), cert. denied 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981); State v. King, 577 S.W.2d 621 (Mo. banc 1979).