The appellant, Paul O. Hansborough, was indicted for murder in the first degree and convicted by the jury of the lesser included offense of murder in the second degree. Alleging that the evidence required a verdict of first degree murder or acquittal, Hansborough asks the reversal of his conviction. We affirm.

Hansborough and one Jenkins, after a misunderstanding about change for five dollars, engaged in a fight during which, at various times, the combatants used a two-by-four, a knife, a grease gun, a pistol, and a rifle. Appellant eventually killed Jenkins with the rifle. The homicide occurred in front of Hansborough's house some minutes after the initial fighting had apparently subsided. It developed, however, that appellant had merely returned home and obtained his rifle to equalize Jenkins' pistol. At the time of the murder Jenkins was leaving the scene in his car. Appellant stopped the car and killed Jenkins simply by putting the barrel of the rifle through the window, aiming it at his victim, and pulling the trigger.1

In a record devoid of appealable points and with evidence of guilt overwhelming, Hansborough is relegated now to attacking the court's charge for the first time, alleging impropriety in submitting the case to the jury on the lesser included offenses of murder in the second degree and manslaughter2 in addition to the first degree murder as charged. Since no exception was taken to the charge, he invokes the plain error rule.3 His argument is that the indictment charged first degree murder, that the Government tried the case as such, and that the facts as presented required the jury to conclude either that he was guilty of murder in the first degree or that he killed in self defense and was therefore not guilty. We find that the evidence required the trial court to submit the case to the jury as it did. Indeed, we find that, on these facts, it would have been reversible error had the court failed to submit the case on, and instruct the jury with respect to, the lesser included offenses.

In the District of Columbia, 'Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, * * * is guilty of murder in the first degree.'4 'Whoever with malice aforethought, * * * kills another, is guilty of murder in the second degree.'5 Manslaughter is unlawful homicide without malice. The distinguishing characteristic of first degree murder is deliberate, premeditated, intentional killing.6 The killing in second degree murder may be intentional or unintentional.7 It must, in either event, result from a willful and malicious act.8 Thus, with the exceptions stated in the first degree murder statute, D.C.Code, 22-2401, where there is an unjustified intentional killing, not premeditated but with malice, the offense is murder in the second degree.9 An unintentional killing which results from a willful and malicious act other than those specified in the first degree murder statute, D.C.Code, 22-2401, is likewise murder in the second degree.10

The facts here show a fight with a short cooling-off period, followed by the killing of one of the combatants by the other. Appellant makes much of this cooling-off period, this interval of time, as tending to prove, if anything, only premeditated murder. But the berdict, he argues, indicates the jury's rejection of the Government's indictment of premeditated murder, and the acceptance, at least on the part of some of the jurors, of the defendant's submission that he killed in self defense when Jenkins attempted to renew the fight by firing on him first. He suggests that the court, by instructing on the lesser included offenses contrary to the evidence, gave the jury an opportunity to compromise, to arrive at common ground between those jurors who may have insisted on a verdict of guilty as charged and those who would accept the suggestion of self defense and acquit. Thus appellant maintains that he stands convicted of a crime with which he was not charged and of which, as a matter of law, he is not guilty.

The evidence in any case, of course, must support any submission the court makes to the jury in its instructions.11 ] If the evidence precludes the legal possibility of guilt of a lesser included offense, then it would be error to submit the case to the jury on such offense. For example, in a felony murder case where the statute12 requires a verdict of murder in the first degree irrespective of premeditation, in the absence of special circumstances, instruction on lesser included offenses would be wrong.13 Due process commands that an accused be tried, and the jury instructed, on the facts as disclosed in the record. 'Congress did not intend to invest juries in criminal cases with power arbitrarily to disregard the evidence and the principles of law applicable to the case on trial.' Sparf and Hansen v. United States, 156 U.S. 51, 63, 15 S. Ct. 273, 39 L. Ed. 343.

Here the court's instruction was fully supported by the evidence. Under the facts as disclosed in the record, there is no way of knowing definitively whether Hansborough intended to kill, or merely wound, his victim. This circumstance alone justified, indeed required, teh second degree murder instruction.14 Moreover, on this record one cannot say with legal certainty that the interval between the fight and the killing was or was not, in the circumstances of this case, of sufficient duration to provide time for the premeditation required in first degree murder. This consideration, too, was for the jury.15

Court appointed counsel has ably and forcefully represented his client on appeal. The accused has had his day in court before an able and experienced trial judge who accorded him every protection the law requires. He should now serve his time.

Affirmed.