¶1(concurring).
¶2I concur in the principal opinion but file this additional explanation only in the interest of making clear that it is my understanding that we are not holding that failure to instruct on the law of the case automatically results in plain error. We expressly held to the contrary in State v. Patterson, 443 S.W.2d 104 (Mo. banc 1969), and it is my understanding that what we said there continues to be the rule. Under that decision, we determine on a case to case basis whether manifest injustice or a miscarriage of justice has occurred as the result of the failure of the court to give an instruction required under the law of the case.
¶3In this case, the State’s evidence was sufficient to entitle defendant to an instruction on excusable homicide resulting from accidental discharge of the gun. Consequently, the defendant was entitled to such an instruction, whether requested or not, as a part of the law of the case. The court did not so instruct, but instead gave an instruction on self-defense. In my judgment, the evidence did not support such an instruction. Defendant’s account of the occurrence as related to the jury claimed accident, not self-defense. In addition, the evidence disclosed that deceased was shot in the back. Under such circumstances, it was confusing to instruct the jury on self-defense, which the evidence did not support, and at the same time fail to instruct on accident when the evidence introduced by the State as to what the defendant said was sufficient to authorize an instruction jp excusable homicide resulting from accidental discharge of the gun. In this confusing situation, I conclude that the failure of the court to instruct on the defense of excusable homicide resulting from accidental discharge of the gun was plain error in this case for which a new trial should be granted.