dissenting.
The principal opinion apparently agrees it was error to fail to instruct the jury the defendant’s wife had the right to use force in his defense. However, it holds that such error was not reversible because (1) the instruction was not essential to proper submission, and (2) the failure to instruct was not prejudicial to the defendant.
The law in Missouri has long been that justification for a homicide is a basic defense on which the court must, whether requested or not, instruct as part of the law of the case. State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49 (1946); State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84 (1944). The use of force in defense of a third person is justified by reference to self-defense: “[w]hat one may do for himself, he may do for another.” State v. Grier, 609 S.W.2d 201 at 203 (Mo.App.1980). The justification of the use of force in defense of a third person is similarly available to an accomplice, there being no authority for the view that an accomplice may be convicted of a greater crime than the principal had intent to commit. State v. Quisenberry, 639 S.W.2d 579, 584 (Mo. banc 1982). Accordingly, where an accomplice has raised the issue of the justification of the principal to use force in defense of himself or another, the court must instruct the jury on that basic defense as part of the law of the case.
The principal opinion asserts that the defense of justification is unavailable to the defendant because his evidence did not establish that he was his wife’s accomplice. A defendant has no burden of establishing the state’s theory before availing himself of a defense against it. Moreover, a de*939fendant’s participation in an offense as an accomplice may be inferred by his conduct before, during or after the commission of the offense. State v. Rollie, 585 S.W.2d 78 (Mo.App.1979). Here, a jury could reasonably have inferred from the evidence of defendant’s conduct that he was at least an accomplice in the robbery. To rebut such an inference, the defendant was entitled to his defense.
The principal opinion contends that the failure to instruct the jury on the wife’s right to use force in the defense of another was not prejudicial to the defendant, because Instructions Nos. 5 and 10 yield the same result. However, Instruction No. 10, patterned on MAI-CR2d 2.10 [withdrawn effective January 1, 1983, a date subsequent to trial of this case], and No. 5, the verdict director, as a practical matter permitted the jury to find the defendant guilty of capital murder, even though it believed that defendant’s wife, rather than defendant, actually shot the victim, without any instructional guidance as to whether she did so with or without a culpable mental state or whether defendant, independent of his wife, had a culpable mental state when she did so. The assertion that Instructions Nos. 10 and 5 are functionally equivalent to an instruction on the justification of the use of force in defense of a third person is erroneous. To excuse as unprejudicial any failure to instruct on a “special negative defense” on the ground that the jury, by its guilty verdict, necessarily found that the state proved all requisite elements set forth in its verdict directing instruction violates fundamental fairness.
I dissent.