¶1(concurring in result).
¶2I concur in the result reached in this case and in the language of the principal opinion that if there had been an entire absence of evidence to support a conviction of manslaughter the trial court could have instructed only on second degree murder. No defendant may be constitutionally convicted of manslaughter when there is no evidence to prove his guilt thereof. I see no reason, however, to overrule State v. Williams, (Mo.Sup. banc) 442 S.W.2d 61. I take the part quoted — that “there must be proof of facts tending to show want of premeditation and malice to warrant an instruction on manslaughter” — to mean that in order to convict of manslaughter the jury must find that defendant acted without malice and without premeditation. That is the way the instructions read here. Under No. 1, the jury could convict of second degree murder if they found defend*539ant acted “premeditatedly and of his malice aforethought, but not deliberately.” Under No. 2, the jury could convict of manslaughter if they found defendant acted "intentionally, without malice and without premeditation.”
¶3Sec. 559.070, RSMo 1959, V.A.M.S. defines manslaughter by a process of elimination. It is a killing not declared to be murder. Murder is defined by Secs. 559.010 and 559.020 and involves deliberation, premeditation and malice. A fortiori, manslaughter does not.