BROWN, Chief Justice.
In this case, the resulting homicide was the culmination of a dispute over parking. Danny Gregorio parked his vehicle at the curb in front of an apartment occupied by appellant Donald W. Braley and Braley’s wife, Pam, and appellant or his wife ordered Gregorio to move his car. Thereafter, appellant and his wife traded insults with Gregorio and his friends and the exchange of pleasantries escalated into a shouting match. At that time, appellant went into his apartment and procured a gun and after firing a warning shot, he shot and killed Danny Gregorio. A jury convicted appellant of second-degree murder.
The issues on appeal raised by appellant are:
“I
“Whether it was error to exclude Dr. Merrell’s testimony as to the state of mind of the Defendant.
“II
“Whether it was error to limit the extent of defense investigation into the alleged jury tampering.
“HI
“Whether it was error to refuse jury instructions pro-offered [sic] by the defense.
“IV
“Whether it was error to exclude the past arrest history of the victim.
“V
“Whether there exists insufficient evidence to support Appellant’s conviction of second degree murder.”
We affirm.
On August 22, 1985, the victim, Danny Gregorio, while driving his wife’s Cadillac, picked up Benny Pena and the twosome proceeded to the residence of John Barnes. The purpose of the visit to the Barnes’ house was to talk to Barnes about painting a car for Gregorio. Gregorio stopped his car in the street near the apartment of appellant Donald Braley and his wife, Pam, in order to talk with Barnes. Gregorio was in the driver’s seat of the parked Cadillac, Pena in the passenger’s seat, and Barnes leaned through the driver’s window while the trio conferred. While this conference was ongoing a blue Trans Am drove up behind the Cadillac and honked. Gregorio did not move the Cadillac, so the Trans Am [1063]*1063backed up and went around the parked vehicle. At this juncture Barnes said to Gregorio that the owners of the Trans Am were his neighbors and that they likely would call the police. Danny Gregorio thereupon pulled the Cadillac over to the curb and parked it in front of the Braley apartment.
A half hour later the Trans Am returned and pulled up behind the parked Cadillac. Appellant and his wife Pam got out of the Trans Am and confronted Gregorio, Pena and Barnes. Appellant demanded that the Cadillac be moved. The Braleys, Gregorio, Pena and Barnes all became involved in the imbroglio that followed. As would be expected, all principals in the parking space fracas had been drinking before the fact.
Demands, insults and threats were exchanged. Verbal exchanges escalated into shoving and hitting. Appellant said he saw the passenger (apparently Pena) with a knife although no knife was ever found. Appellant went into his house, loaded his rifle and returned to the scene of the confrontation. He fired a shot into the air. Only Pena and Barnes exhibited good judgment and upon hearing the shot they ran.
Gregorio tarried, and said to appellant, “What are you going to do, shoot me with your gun?” Appellant did. Appellant then walked over to Gregorio, who was lying on the ground, and said, “Get up, you’re not shot.”
After the shooting appellant called the police and said someone had hit his head and he needed an ambulance. Appellant also said to his wife, “Pam, come here, we’ve got to get our stories together.”
Appellant was charged with first degree murder. At trial he relied on two theories of defense: accident and defense of his wife, Pam. Appellant was convicted of second degree murder and sentenced to the penitentiary for not less than 20 years nor more than 25 years.
I
At trial appellant called Dr. Arthur N. Merrell, a psychiatrist as a witness. The purpose of Dr. Merrell’s testimony according to appellant was to describe “Defendant’s reaction to the events of the night in question, and whether such reaction was reasonable from the perspective of what causes fear, and how fear develops.” Also, according to appellant, “The substance of the testimony was directed at whether or not the Defendant’s actions were reasonable actions of self-defense under all the circumstances.”
However, the trial court disallowed the testimony and appellant made an offer of proof. Dr. Merrell noted in the offer of proof eight or nine factors (defense counsel characterized these factors as “stressors”) present at the scene of the shooting “that would or could or did trigger fear.” The doctor concluded that appellant’s “judgment is not as clear as it might be.” Dr. Merrell further stated “ * * * [I]t does appear that his (appellant’s) judgment was fairly well affected by his fear. * * *” The offer of proof concluded:
“Q. Okay. Now, let me ask you a couple of questions: Would the fear that'he had impair his motor function, you mentioned handling the rifle?
“A. Struggling with the rifle, yeah.
“Q. Okay. Could it impair his blood pressure or cause a change?
“A. You know, fear can affect the body by increasing — well, by changing a lot of bodily functions.
“Q. Okay. Pulse?
“A. Yes, pulse going up, heart rate going up, blood pressure increasing, getting peripheral vasodilatation, excitement, alertness increasing and so forth.
“Q. How about judgment?
“A. I think that fear can certainly impair judgment.
“MR. MUNKER: That’s my offer, Your ’ Honor.”
The trial court rejected the offer of proof and held that fear and stress are emotions understood by the jury. The court stated:
“ * * * [I]t is within the ken (perception, understanding, knowledge or vision) of the juror that is there either was or was not an assault in response to which the defendant was either justified or not justified in believing himself to be in immi[1064]*1064nent danger, and that he either did or did not behave as a reasonable person similarly situated. That's the reason we have jurors. They set the standard of reasonableness with regard to these kind of issues, not surrendering this judgment of that to that of an expert.”
We agree with the trial judge.
Rule 702, Wyoming Rules of Evidence, provides:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
“ * * * The ‘aura of special reliability and trustworthiness’ surrounding scientific or expert testimony, particularly calls for trial court discretion. * * * [Citation.]” Buhrle v. State, Wyo., 627 P.2d 1374, 1377 (1981).
The trial court’s decision to admit or reject expert testimony is a decision solely within the sound discretion of the trial court and will not be reversed without a showing of clear and prejudicial abuse. Buhrle v. State, supra; and Smith v. State, Wyo., 564 P.2d 1194 (1977).
“* * * [I]n the ordinary self-defense fact situation it is not necessary to rely upon expert testimony to explain the perception of the accused at the moment of crisis when he or she resorts to the use of deadly force. * * * ” Jahnke v. State, Wyo., 682 P.2d 991, 1013 (1984).
In Buhrle v. State, supra, at 1376, we said:
“The criteria to be used in determining the admissibility of an expert witness’ testimony are set out in Dyas v. United States, 376 A.2d 827, 832 (D.C.C.A.1977), cert. denied 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977). As stated by the court:
“ ‘(1) * * * the subject matter “must be so distinctively related to some science, profession, business, or occupation as to be beyond the ken of the average layman [emphasis added]”; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth [emphasis added]”; (3) expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.” ’ McCormick on Evidence, § 13, pp. 29-31 (2d Ed.1972).”
In Smith v. State, supra, at 1199, we stated:
“Expert testimony is appropriate when the subject of inquiry is one which jurors of normal experience and qualifications as laymen would not be able to decide without the technical assistance of one having unusual knowledge of the subject by reason of skill, experience or education in the particular field. [Citations.] ***
“The ultimate fact needed for a determination of the degree of the crime was the state of mind of the accused at the time of the shooting. Such a subjective conclusion must be found by the jury. The doctor could give jury members no more help than they already had from the facts. Under such circumstances, his conclusion was one which the jurors could draw for themselves. [Citation.] * * * ft
Also, in Krucheck v. State, Wyo., 702 P.2d 1267, 1271 (1985), we stated:
“ * * * Reaction to stress and excitement is something experienced by all of mankind. It is a matter of common knowledge within the experience of lay persons and hardly a subject for expert testimony. We have said, to be admissible, the subject matter must be so distinctively related to some science, profession, business, or occupation as to be beyond the ken of the average layman. [Citations.] * * *”
We hold that fear and stress are emotions experienced by all mankind and are not distinctively related to some science, technical or specialized knowledge. [1065]*1065We agree with the trial judge that the testimony of Dr. Merrell would not be helpful to the jury.
II
Appellant contends that it was error for the court to limit investigation of alleged jury tampering.
In the middle of the trial, defense counsel’s secretary, Ms. Daniels, received an anonymous phone call. The caller said that he had been attending the trial, and wanted to let the public defender, Leonard Munker, know that two of the jurors knew Gregorio personally. The caller described the jurors: one was a black woman and the other was an older woman, heavyset, about 47, maybe sitting two or three people from the left in the front row of the jury box. The caller would not give his name or phone number, but did agree to call back later. The court allowed Ms. Giles, the only black woman on the jury, to be questioned.
After evening recess, the court met in chambers with counsel and with Ms. Daniels. Ms. Daniels was sworn in and questioned about the phone call. She repeated what was said and stated that the caller had not called back that day. Although the court said that it felt it knew who the individual was, a Mr. Mike Evans, a convicted felon, the court also said that the individual had not identified himself nor provided anything that it could take cognizance of. The next day defense counsel received a telephone call from the anonymous caller. This conversation was recorded by defense counsel and was thereafter played for the court. At that time, defense counsel recalled John Barnes because the caller indicated Mr. Barnes had additional information. The substance of the tape recorded conversation was that Mike Gregorio, the father of the victim, had two of the jurors in his pocket. The court concluded that the caller was indeed Mr. Evans, and that they should continue with the trial and allow the matter to be developed later.
After the trial, appellant was allowed to approach jurors subject to Rule 702, Uniform Rules for the District Courts of the State of Wyoming.
On February 4, 1986, appellant filed a motion for a new trial alleging newly discovered evidence, which was based on evidence discovered regarding the jury. The evidence was that defense counsel had talked to one of the jurors, and had been told that when the jury went to deliberate, Ms. Giles and Ms. Kardong, the two women who had been mentioned by the anonymous caller, had informed other jurors that they were voting for first degree murder and that they would not change their minds nor consider a conviction on any lesser offense. The juror questioned by counsel also said that the remainder of the jurors were torn between manslaughter and second degree murder. Finally, Ms. Kardong voted for second degree murder, and after more discussion, Ms. Giles agreed to also go along with that verdict. Appellant argues that new evidence supported the tip that Mike Gregorio had two jurors in his pocket, and that a new trial should be granted. Appellant says that but for the adamant positions of Ms. Kardong and Ms. Giles, the other jurors might have returned a verdict of guilty of manslaughter.
This court remanded this portion of the case back to the district court for the limited purpose of considering the motion for new trial.
During the first hearing pursuant to the remand, Judge Edward L. Grant heard ar- • gument, but declined to hear witnesses and the matter was continued. The next hearing was held before Judge Joseph F. Maier. At that time, jurors Giles and Kardong, jury foreman Nantz, and Mike Gregorio were called to testify. The questions posed to the jurors were limited to whether or not any of them had been approached by any outside source during the course of the trial, and whether they had been influenced by any outside source. Mr. Gregorio was questioned as to whether or not he had had any contact with any of the jurors. Each witness denied any contact or influence. Defense counsel was not permitted to inquire further into the deliberations of the jury-
[1066]*1066The state’s position during the inquiry regarding alleged jury tampering was that appellant was making a broad and vague allegation impugning the jury system and that it was a fishing expedition. The prosecution also said that because the anonymous caller was identified as a convicted felon, his “tip” was unworthy of belief.
The trial court ruled that what had been presented did not support appellant’s motion for a new trial and nothing impeached the jury’s verdict. Accordingly, the motion for a new trial was denied.
Rule 606(b), W.R.E., provides:
“(b) Inquiry into validity of verdict or indictment. — Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” (Emphasis added.)
Notwithstanding protestations to the contrary, appellant urges that he should be able to go far beyond that permitted by Rule 606(b), and question the jurors with respect to their deliberations, emotions and feelings. In the absence of a body of case law in Wyoming interpreting Rule 606(b), W.R.E., we will consider what the federal courts have done with our identical rule.
Although a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, he may not testify regarding the jury’s mental processes, or the influences that any particular evidence had upon the jury’s conclusion, United States v. Howard, 506 F.2d 865 (5th Cir.1975), and further, a juror may be questioned about extraneous information or outside influence but may not be interrogated about its impact on him or other jurors. Brofford v. Marshall, 751 F.2d 845 (6th Cir.1985). See also, 3 Wein-stein’s Evidence, § 606[05], pp. 606-40, 606-41 and n. 4 (1985); and 3 Louisell & Mueller, Federal Evidence, §§ 286-287 (1979). If a juror were permitted to testify about what another juror said, it would result in an unwarranted intrusion into jury deliberations. United States v. Aimone, 715 F.2d 822 (3rd Cir.1983). See also, United States v. Crosby, 294 F.2d 928 (2d Cir.1961), cert. denied sub nom, Mittelman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523, reh. denied 369 U.S. 881, 82 S.Ct. 1138, 8 L.Ed.2d 285 (1962); Morgan v. Sun Oil Co., 109 F.2d 178 (5th Cir.1940), cert. denied 310 U.S. 640, 60 S.Ct. 1086, 84 L.Ed. 1408 (1940).
In King v. United States, 576 F.2d 432, 438 (2d Cir.1978), the court said:
“There is a judicial reluctance, for sound and easily understood reasons, ‘to inquire into the state of mind of any juror and into the conduct of the jurors during their deliberations.’ [Citations.] This is to avoid harassment of jurors, inhibition of deliberation in the jury room, a deluge of post-verdict applications mostly without real merit, and an increase in opportunities for jury tampering; it is also to prevent jury verdicts from being made more uncertain. [Citation.]
“To overcome this reluctance and to authorize a post-verdict inquiry, there must be ‘clear evidence’, ‘strong evidence’, ‘clear and incontrovertible evidence’, ‘substantial if not wholly conclusive evidence.’ [Citation.]”
See also, Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir.1975), cert. denied 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976).
The only restriction placed on appellant in his questioning of witnesses at the hearing on a motion for new trial were strictures specifically provided for in Rule 606(b), W.R.E. Otherwise, he was given wide latitude.
[1067]*1067We find no error in the trial court’s conduct of the hearing on a motion for new trial.
Ill
In appellant’s third issue he contends that the court erroneously rejected a self-defense instruction. One of his theories at trial and on appeal was that in defense of his wife he could lawfully take any action that she could have taken. We do not disagree. However, a defender is justified in using force only in those circumstances that the person being defended could use force. Furthermore, he cannot use greater force than the person being defended could use.
In Leeper v. State, Wyo., 589 P.2d 379, 383 (1979), we said:
“One asserting the justification of defense of another steps into the position of the person defended. Defense of another takes its form and content from defense of self. The defender is not justified in using force unless he or she reasonably believes the person defended is in immediate danger of unlawful bodily harm, and that the force is reasonable and necessary to prevent that threat. The defender can only use that degree of force necessary to relieve the risk of harm. [Citations.] * * *”
Appellant further contended that his wife may have been the aggressor in the brawl, and therefore, he was entitled to an instruction on the withdrawal of an aggressor. He proffered the following instruction designated “C,” which was refused:
“Generally, the right to use self-defense is not available to one who is the aggressor or provokes the conflict. However, if one who provokes a conflict thereafter withdraws from it in good faith and informs his adversary by words or actions that he desires to end the conflict, and he is thereafter pursued, he then has the same right of self-defense as any other person.”
The law of an aggressor’s right to self-defense is stated in Garcia v. State, Wyo., 667 P.2d 1148, 1153 (1983):
“ ‘ * * * [A] person who provokes or brings on the difficulty in which he kills his assailant cannot invoke the right of self-defense, unless he in good faith retreats as far as he safely can, making that fact manifest to his adversary.’ * * * ” (Emphasis added.) Quoting State v. Flory, 40 Wyo. 184, 276 P. 458 (1929).
The notion that appellant’s wife may have been the aggressor and that she withdrew from the rumpus apparently did not occur to appellant until after all the evidence had been produced. He did not produce a shred of evidence in support of the theory of an aggressor abandoning the fight. In fact, appellant and his wife consistently denied any aggression on the part of Mrs. Braley. Testimony produced by the Braleys was that Gregorio, Pena, and Barnes were the aggressors from the beginning and were doing the hitting and shoving.
The six self-defense instructions given by the court adequately covered appellants self-defense theory and the testimony produced at trial by appellant. Appellant does not contend otherwise. Arguably, in the record of trial there may be a modicum of evidence that Mrs. Braley was the aggressor. However, there is not a scintilla of evidence that she abandoned her aggression. One wonders how she could abandon something that she claims she was not doing. It necessarily follows that she could not communicate abandonment when she did not abandon.
We find the agressor-abandonment instruction would have totally confused the jury and if anything would tend to cast doubt on appellant’s entire theory of self-defense. Further, there was no competent evidence to support appellant’s proffered instruction nor would a rational view of any evidence justify giving such instruction. The trial court properly refused to give appellant’s proposed instruction C.
IV
In the fourth issue appellant contends that “it was error to exclude the post arrest history of the victim.”
[1068]*1068In this issue we are concerned principally with Rules 401-404, W.R.E.
“Rule 401. Definition of ‘relevant evidence.’
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
“Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible.
“All relevant evidence is admissible, except as otherwise provided by statute, by these rules, or by other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible.
“Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. “Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes.
“(a) Character evidence generally. — Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
“(1) Character of Accused. — Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
“(2) Character of Victim. — Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(t * * *
“(b) Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident.”
We frequently find it necessary to consider the interrelationship of these four rules of evidence.
Under Rule 404(b), W.R.E., prosecutors oft seek to introduce evidence concerning a defendant's past misconduct. They contend that this evidence is admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, pattern, complete story or course of conduct. After this evidence has been admitted for a limited purpose set out in Rule 404(b), prosecutors have been known to subtly use such evidence to persuade the trier of fact that on a particular occasion the accused acted in conformity with the character trait described in the testimony. This, of course, is a subversion of Rule 404.
Similarly, one of the most ancient and successful defenses in homicide cases is to try the victim. That is to say, show the jury that the deceased was a bad person and deserved what he got and that society is none the worse for it. The trial court must balance the “giveth” provision of Rule 404(b), against the “taketh away” provision of Rule 403. That delicate balancing problem was presented to the trial court in the case before us.
At trial appellant attempted to introduce into evidence the arrest record (rap sheet) of the victim, Danny Gregorio. This record showed fourteen arrests, none for felonies. This history included shoplifting at age thirteen and the numerous other arrests involved taking tires, a traffic citation warrant, more than a few drinking and driving charges, and one public disturbance in which he was yelling. In only one of the arrests was any violence by the victim noted, and in that arrest, the physical violence [1069]*1069was not the reason for the arrest; rather it took place at the booking desk.
Appellant characterizes the victim’s behavioral history as “uncivilized or civil disobedience.” We do not disagree. However, there was nothing in the “rap sheet” suggesting the use of guns, knives or other weapons likely to result in death or bodily harm. Nor was any conduct described in the history suggesting life threatening behavior or behavior that might result in serious bodily harm.
Arguably, the bits and pieces of the record might support appellant’s theory that the victim was the aggressor. However, this character trait did not go beyond incidents involving shoving, pushing, and yelling. The trial court was faced with the possible prejudice and confusion proscribed by Rule 403, W.R.E. In Taylor v. State, Wyo., 642 P.2d 1294, 1295 (1982), we said:
“It has been held generally that the admission of evidence is within the sound discretion of the trial court and absent a clear abuse of discretion will not be disturbed. It is also the general rule that the foundation, relevance, competency, materiality, and remoteness are within the sound discretion of the trial court and will be upheld on appeal absent a clear abuse of discretion.”
After quoting Taylor, we said in Jahnke v. State, supra, at 1005:
“The burden of establishing the clear abuse of discretion must be assumed by the party who attacks the ruling of the trial court. Buhrle v. State, supra; Nimmo v. State, Wyo., 603 P.2d 386 (1979). That party must establish that the ruling of the trial court was erroneous and that it did affect substantial rights of the party. The trial court in the exercise of its discretion can exclude even relevant evidence when there are countervailing considerations such as ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.’ Rule 403, W.R.E.”
We give considerable deference to the trial court’s evidentiary rulings and will not disturb them unless the court has clearly abused its discretion. The trial court was justified in refusing to admit into evidence the arrest record of the victim. The arrest history had slight relevance. We do not doubt that the danger of prejudice and confusion outweighed the probative value of the arrest record.
V
In his final argument appellant claims that there was insufficient evidence to convict him of second degree murder.
Appellant was convicted under § 6-2-104, W.S.1977, (1983 Replacement), which provides:
“Whoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree * *
He contends that the state failed to prove malice.
“* * * [T]he duty of this court is to examine all the evidence in the light most favorable to the state to determine if there is sufficient evidence to uphold the verdict.” Cheatham v. State, Wyo., 719 P.2d 612, 624 (1986).
See also, Cutbirth v. State, Wyo., 663 P.2d 888 (1983).
Malice has been defined as intentional killing without legal justification or excuse and under circumstances which are insufficient to reduce the crime to manslaughter. Nunez v. State, Wyo., 383 P.2d 726 (1963). If the facts and circumstances allow, then malice may be inferred by the use of a deadly weapon. Kennedy v. State, Wyo., 422 P.2d 88 (1967).
In this case, appellant walked into his apartment and loaded his rifle with three bullets selected from a box of shells. After coming out of the apartment, he fired one shot in the air. He then pointed the rifle at the victim and fired the second shot about fourteen seconds after the first. The wound was horizontal. He then put the third bullet in the chamber and walked [1070]*1070to the dying victim and pointed the rifle at his head.
By appellant’s own testimony the victim was not making any menacing gestures when he was shot. The rifle had an ordinary trigger pull and worked normally. Additionally, after he shot the victim he told his wife that they had to get their stories straight.
In Cutbirth v. State, supra, appellant was convicted of second degree murder. He contended, as is alleged in the case before us, that the evidence was insufficient to show malice. Further, the facts in the Cutbirth case showing malice are similar to the facts in this case.
In Cutbirth we said:
“There were significant facts from which the jury could find that appellant maliciously intended to use the revolver against his wife. Appellant pointed the gun toward his wife before its discharge. The gun was discharged within 2 feet of the victim’s forehead, and the bullet entered the victim’s skull almost between the eyes. The death weapon was a .357 magnum revolver with normal trigger pull and no malfunction. After the shooting appellant threw the gun outside.” Id. at 889, 890.
“ * * * [T]he malice of which the crime speaks may be inferred from the use of a deadly weapon in a deadly manner, if the facts and circumstances will permit. * * Malice may be inferred from all of the other facts and circumstances. * * * ” Leitel v. State, Wyo., 579 P.2d 421, 424 (1978).
In Smith v. State, supra, at 1198, we said:
“Purposely denotes intent. Use of a deadly weapon gives rise to a presumption of intent to kill. * * * The design to kill is inferred from the act of killing. * * * Malice may be inferred from the use of a deadly weapon in a dangerous and deadly manner if the facts and circumstances so allow. * * * ”
Therefore, we hold that there was sufficient evidence from which the jury could find beyond a reasonable doubt that appellant killed Danny Gregorio purposely and with malice. The evidence favorable to the state as it pertains to second degree murder, together with favorable inferences which may be reasonably and fairly drawn, is inconsistent with involuntary manslaughter.
We have carefully considered the five issues raised by appellant and find that there was no reversible error.
Affirmed.
URBIGKIT, J., filed a dissenting opinion.