VANDE WALLE, Justice.
Marvin Wiedrich appealed from a jury conviction of manslaughter, alleging, among other issues, omissions from the jury instructions. We reverse the conviction.
On May 21,1988, Eddie Goodbird went to Halliday, North Dakota, to seek work at the Long Horn Bar, owned by Wiedrich. Wiedrich hired him to do some yard work. After Goodbird started the job, the mower broke. Goodbird went back into the bar, told Wiedrich about the mower, and offered to finish the job when the mower was fixed. Wiedrich paid Goodbird $15.00. Go-odbird had a few beers and played an electronic game with another bar patron. Meanwhile, Wiedrich went out to inspect Goodbird’s work. When he came back in, he was angry and hollered at Goodbird, [681]*681“You didn’t do shit.” An argument took place in which Wiedrich was more vocal, but no one heard or saw any threats of violence, shoving, or pushing.
The other patrons left and there was no one else present when Wiedrich shot Good-bird twice with a pistol. Soon after the shooting, Esther Horning, Wiedrich’s live-in friend, returned to the bar and found Wiedrich calling the sheriff to report the shooting. Wiedrich told her to lock the door to the bar. When the sheriff arrived, Horning unlocked the door and let him in. The sheriff found Goodbird dead, lying face down behind the bar. Wiedrich told the sheriff, “I shot him.”
Wiedrich was charged with murder, a class AA felony. The jury was instructed on AA murder, on lesser-included offenses of A murder and manslaughter, and on self-defense. Wiedrich was convicted of manslaughter and sentenced to ten years in the state penitentiary. Wiedrich appealed.
The trial court refused an instruction requested by Wiedrich that possession of a firearm by the proprietor of a retail liquor establishment was not illegal. The trial court denied his request because the instruction concerned a “collateral matter” which would “only cause confusion of the real issues before the jury.” Wiedrich argues this omission was reversible error.
Wiedrich was not being tried for possessing a firearm, but rather for how he used it. It is well-settled that if the instructions, when considered in their entirety, correctly advise the jury as to the law applicable to the case, there is no error even though the trial court refused to submit a requested instruction which itself was a correct statement of law. State v. Huwe, 413 N.W.2d 350, 352 (N.D.1987). Wiedrich was not substantially harmed by the denial of a jury instruction on an issue different than homicide.
Wiedrich was on trial for AA murder.1 The trial court also instructed on lesser-included offenses of A murder2 and manslaughter,3 as well as self-defense, but did not instruct on negligent homicide.4 Wied-rich objected to submission of any lesser offenses and did not request submission of the lesser offense of negligent homicide. On appeal Wiedrich assigns as obvious error the trial court’s failure to instruct on negligent homicide.
In this Court, Wiedrich insists that a charge of negligent homicide must always be given to a jury instructed on self-defense and on manslaughter. Wiedrich quotes State v. Leidholm, 334 N.W.2d 811, 821 (N.D.1983), as authority that “any time the court instructs a jury on self-defense, it must of necessity include a special instruction on manslaughter as well as an instruction on negligent homicide.” See also [682]*682State v. White, 390 N.W.2d 43 (N.D.1986). Wiedrich urges that, when the trial court overruled his objections to submission of any lesser offenses and instructed on manslaughter and self-defense, the trial court was still obliged to instruct on negligent homicide.5
A defendant is entitled to an instruction on all defenses for which there is any support in the evidence, whether such evidence is consistent or inconsistent. State v. Thiel, 411 N.W.2d 66 (N.D.1987); State v. Hazlett, 16 N.D. 426, 113 N.W. 374 (1907). But, generally, absent a request for an instruction on a lesser-included offense, it is not error for the trial court to fail to give such an instruction. State v. Motsko, 261 N.W.2d 860 (N.D.1977) [disagreeing with the rule from some jurisdictions that, even in the absence of a request and irrespective of the evidence presented in a case, a trial court must instruct on all included offenses]. The issue before us is whether our decision in State v. Leidholm, supra, requiring that when an instruction on self-defense is given the court must also instruct on all lesser-included offenses, is controlling in this instance or whether our decision in State v. Frey, 441 N.W.2d 668 (N.D.1989), holding that when a defendant objects to the lesser-included offense instruction there is no error when the court does not instruct as to the lesser-included offenses notwithstanding that the court has also instructed on self-defense is controlling. We conclude that, under the facts of this case, Leidholm, not Frey, controls.
Although Wiedrich did not testify at the trial, there is no doubt that his explanation of the shooting was self-defense. Wied-rich’s statement to a deputy sheriff at the scene of the shooting was offered in evidence by the State. Excerpts from Wied-rich’s statement illustrate his position:
[Wiedrich]: [H]e told me and he come around the end of- the bar come up, the threat to kill me, and beat on me (inaudible due to crying).
* * * * * *
[Wiedrich]: I got this little pistol laying over there, it’s always there, it’s always been there.
* * * * * *
[Wiedrich]: I couldn’t take no more beating, I reached for my pistol and apparently I used it.
******
[Wiedrich]: I had to do something to survive.
[Deputy]: Okay, you felt at this point if you had not killed him, he was going to kill you.
[Wiedrich]: I said, I was dead when I picked up the gun.
[683]*683[Deputy]: Okay, so you, when you shot the gun, you felt that you had to do that to protect yourself?
[Wiedrich]: Yes, to stay alive, I had, cause he was nailing me right and left, I mean, it was (inaudible) on me.
[Deputy]: Okay, by nailing you right and left, can you, ah, what do you mean by that? Was he hitting you with his fists?
[Wiedrich]: Like hitting me, like.
[Deputy]: So he was hitting you with his fists?
[Wiedrich]: With his fist, tried to kick me a few times and asked me to get out of the way and he kicked me in a certain place (inaudible) which he was aiming for.
[Deputy]: What place was this?
[Wiedrich]: The crotch.
Free access — add to your briefcase to read the full text and ask questions with AI
VANDE WALLE, Justice.
Marvin Wiedrich appealed from a jury conviction of manslaughter, alleging, among other issues, omissions from the jury instructions. We reverse the conviction.
On May 21,1988, Eddie Goodbird went to Halliday, North Dakota, to seek work at the Long Horn Bar, owned by Wiedrich. Wiedrich hired him to do some yard work. After Goodbird started the job, the mower broke. Goodbird went back into the bar, told Wiedrich about the mower, and offered to finish the job when the mower was fixed. Wiedrich paid Goodbird $15.00. Go-odbird had a few beers and played an electronic game with another bar patron. Meanwhile, Wiedrich went out to inspect Goodbird’s work. When he came back in, he was angry and hollered at Goodbird, [681]*681“You didn’t do shit.” An argument took place in which Wiedrich was more vocal, but no one heard or saw any threats of violence, shoving, or pushing.
The other patrons left and there was no one else present when Wiedrich shot Good-bird twice with a pistol. Soon after the shooting, Esther Horning, Wiedrich’s live-in friend, returned to the bar and found Wiedrich calling the sheriff to report the shooting. Wiedrich told her to lock the door to the bar. When the sheriff arrived, Horning unlocked the door and let him in. The sheriff found Goodbird dead, lying face down behind the bar. Wiedrich told the sheriff, “I shot him.”
Wiedrich was charged with murder, a class AA felony. The jury was instructed on AA murder, on lesser-included offenses of A murder and manslaughter, and on self-defense. Wiedrich was convicted of manslaughter and sentenced to ten years in the state penitentiary. Wiedrich appealed.
The trial court refused an instruction requested by Wiedrich that possession of a firearm by the proprietor of a retail liquor establishment was not illegal. The trial court denied his request because the instruction concerned a “collateral matter” which would “only cause confusion of the real issues before the jury.” Wiedrich argues this omission was reversible error.
Wiedrich was not being tried for possessing a firearm, but rather for how he used it. It is well-settled that if the instructions, when considered in their entirety, correctly advise the jury as to the law applicable to the case, there is no error even though the trial court refused to submit a requested instruction which itself was a correct statement of law. State v. Huwe, 413 N.W.2d 350, 352 (N.D.1987). Wiedrich was not substantially harmed by the denial of a jury instruction on an issue different than homicide.
Wiedrich was on trial for AA murder.1 The trial court also instructed on lesser-included offenses of A murder2 and manslaughter,3 as well as self-defense, but did not instruct on negligent homicide.4 Wied-rich objected to submission of any lesser offenses and did not request submission of the lesser offense of negligent homicide. On appeal Wiedrich assigns as obvious error the trial court’s failure to instruct on negligent homicide.
In this Court, Wiedrich insists that a charge of negligent homicide must always be given to a jury instructed on self-defense and on manslaughter. Wiedrich quotes State v. Leidholm, 334 N.W.2d 811, 821 (N.D.1983), as authority that “any time the court instructs a jury on self-defense, it must of necessity include a special instruction on manslaughter as well as an instruction on negligent homicide.” See also [682]*682State v. White, 390 N.W.2d 43 (N.D.1986). Wiedrich urges that, when the trial court overruled his objections to submission of any lesser offenses and instructed on manslaughter and self-defense, the trial court was still obliged to instruct on negligent homicide.5
A defendant is entitled to an instruction on all defenses for which there is any support in the evidence, whether such evidence is consistent or inconsistent. State v. Thiel, 411 N.W.2d 66 (N.D.1987); State v. Hazlett, 16 N.D. 426, 113 N.W. 374 (1907). But, generally, absent a request for an instruction on a lesser-included offense, it is not error for the trial court to fail to give such an instruction. State v. Motsko, 261 N.W.2d 860 (N.D.1977) [disagreeing with the rule from some jurisdictions that, even in the absence of a request and irrespective of the evidence presented in a case, a trial court must instruct on all included offenses]. The issue before us is whether our decision in State v. Leidholm, supra, requiring that when an instruction on self-defense is given the court must also instruct on all lesser-included offenses, is controlling in this instance or whether our decision in State v. Frey, 441 N.W.2d 668 (N.D.1989), holding that when a defendant objects to the lesser-included offense instruction there is no error when the court does not instruct as to the lesser-included offenses notwithstanding that the court has also instructed on self-defense is controlling. We conclude that, under the facts of this case, Leidholm, not Frey, controls.
Although Wiedrich did not testify at the trial, there is no doubt that his explanation of the shooting was self-defense. Wied-rich’s statement to a deputy sheriff at the scene of the shooting was offered in evidence by the State. Excerpts from Wied-rich’s statement illustrate his position:
[Wiedrich]: [H]e told me and he come around the end of- the bar come up, the threat to kill me, and beat on me (inaudible due to crying).
* * * * * *
[Wiedrich]: I got this little pistol laying over there, it’s always there, it’s always been there.
* * * * * *
[Wiedrich]: I couldn’t take no more beating, I reached for my pistol and apparently I used it.
******
[Wiedrich]: I had to do something to survive.
[Deputy]: Okay, you felt at this point if you had not killed him, he was going to kill you.
[Wiedrich]: I said, I was dead when I picked up the gun.
[683]*683[Deputy]: Okay, so you, when you shot the gun, you felt that you had to do that to protect yourself?
[Wiedrich]: Yes, to stay alive, I had, cause he was nailing me right and left, I mean, it was (inaudible) on me.
[Deputy]: Okay, by nailing you right and left, can you, ah, what do you mean by that? Was he hitting you with his fists?
[Wiedrich]: Like hitting me, like.
[Deputy]: So he was hitting you with his fists?
[Wiedrich]: With his fist, tried to kick me a few times and asked me to get out of the way and he kicked me in a certain place (inaudible) which he was aiming for.
[Deputy]: What place was this?
[Wiedrich]: The crotch.
[Deputy]: So you felt if he’d a kicked you in the groin area then you’d been down.
[Wiedrich]: Right. That’s what he was aiming for.
[Deputy]: Okay, while he was hitting and kicking you, was he, say anything to you?
[Wiedrich]: Ya. I’m gonna kill you son-of-a-bitch.
[Deputy]: That was quote “I’m gonna kill you son-of-a-bitch”? Unquote.
[Wiedrich]: I’m gonna kill you son-of-a-bitch.
[Deputy]: How many times did he say this to you?
[Wiedrich]: About three-four times before he got backed in the corner.
[Deputy]: Okay, ah, did he tear the tie off you?
[Wiedrich]: Ya. I didn’t know I was even missing it. I didn’t know I was.
He * * * sfs *
[Wiedrich]: Yes, when, first time I shot him, he had hold of my throat, and beating on me. After that he just kept beating on me until the second shot.
There was also evidence that Wiedrich’s left temple was bloody and bruised and that he had a scratch on the left side of his face. Witnesses testified that Wiedrich appeared upset and that he said “I didn’t mean to do it. I didn’t want to kill anybody,” and “He kept coming at me. He just was coming at me, and I shot him, and he kept coming at me so I shot him again.”
In State v. Leidholm, supra, Leidholm contended that it was error to instruct the jury, over her objection, that manslaughter was a lesser-included offense of murder. We observed that whether or not a lesser-included offense instruction on manslaughter is appropriate in a murder trial depends upon the particular facts and circumstances of the case and concluded that the trial court’s instruction on manslaughter was warranted in that case. More significantly, for the purpose of this case, we observed that:
“[A]ny time the court instructs a jury on self-defense, it must of necessity include a special instruction on manslaughter as well as an instruction on negligent homicide. [Citations omitted.] The difference between self-defense and manslaughter is the reasonableness of the accused’s belief that the use of force is necessary to prevent imminent unlawful harm. If the accused’s belief is reasonable, he will be found to have acted in self-defense. If unreasonable, he is guilty of either manslaughter or negligent homicide, depending upon whether his belief was held recklessly or negligently, respectively. [Citations omitted.]” State v. Leidholm, 334 N.W.2d at 821.
In State v. Frey, supra, Frey was charged with the murder of one man and the attempted murder of another man. Frey requested an instruction on self-defense but specifically objected to instructing the jury on lesser-included offenses of any kind. The State requested an instruction on a lesser-included offense of attempted murder, i.e., aggravated assault. The court instructed the jury on murder, self-defense, attempted murder and aggravated assault (a lesser-included offense of attempted murder), but did not instruct the jury on lesser-included offenses of murder. Frey was convicted of murder and aggravated assault but notwithstanding his ob[684]*684jection to any instructions on lesser-included offenses of murder at the trial level on appeal, relying on Leidholm, he contended it was obvious error under Rule 52(b), NDRCrimP, to not instruct on those lesser-included offenses.
In its decision, this Court observed that the defendant has a right to waive instructions on lesser-included offenses as a trial tactic, observing that a defendant “who waives instructions on lesser included offenses takes an all-or-nothing risk that the jury will not convict of the greater offense.” State v. Frey, 441 N.W.2d at 670. The Court noted there was a “vast difference between a defendant raising an issue on appeal about allegedly incorrect jury instructions where there has been no objection ... or no request for other instructions in the lower court ... and a defendant raising an issue on appeal about jury instructions where the defendant has specifically requested that the jury not be given those instructions.” Id. at 670-71. The Court concluded that because Frey’s trial counsel specifically objected to instructions on lesser-included offenses of murder, Frey waived any right to those instructions that he might otherwise have had.
In Frey, the court acknowledged the right of the defendant, as a trial tactic, to reject any lesser-included offense instructions. The effect of such a position by the defendant is to force the jury to either convict or to acquit outright. It permits no compromise on the part of the jury. The defendant gambles that the jury will at least have a reasonable doubt that all the elements of murder have been proven and, therefore, will have to acquit the defendant of that charge rather than have the choice to convict of a lesser-included offense.6 But this is not a Frey case. In Frey, the defendant objected to instructions on any lesser-included offenses and none were given. Here, Wiedrich also objected to all lesser-included offense instructions but, at the State’s request, the court instructed on class A murder and the lesser-included offense of manslaughter, as well as giving an instruction on self-defense. When the trial court, over the defendant’s objection, instructed on a lesser-included offense, it nullified the trial tactic of the defendant to force the jury into an all-or-nothing position. The State has the right to request the lesser-included instruction over the objection of the defendant. But, once that is granted and an instruction on manslaughter, in addition to an instruction on self-defense, is given, our conclusion in Leidholm applies, i.e., that when a self-defense instruction is given the court must, of necessity, include a special instruction on manslaughter and on negligent homicide. If self-defense has been alleged but has been determined by the jury to be not reasonable, the defendant is guilty of either manslaughter or negligent homicide, depending upon whether the belief was recklessly held, in which case he is guilty of manslaughter, or negligently held, in which case he is guilty of negligent homicide.
Thus, contrary to the situation in Frey, the trial court, over the defendant’s objection, nullified Wiedrich’s trial tactic of having the jury instructed only on the greater offense, murder, and self-defense. Once the defendant's wishes on this matter were overruled, the trial court should have instructed on all the lesser-included offenses, including negligent homicide.
The difference between “recklessly” and “negligently” is defined by our statute:
“1. For the purposes of this title, a person engages in conduct:
c. ‘Recklessly’ if he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct....
d. ‘Negligently’ if he engages in the conduct in unreasonable disregard of a substantial likelihood of the existence of the relevant facts or risks, [685]*685such disregard involving a gross deviation from acceptable standards of conduct.” [Emphasis supplied.] NDCC § 12.1-02-02.
Wiedrich was charged with murder but the jury did not convict him of murder; it convicted him of manslaughter. It is apparent from the facts of this case that a jury could have concluded that Wiedrich was negligent in his conduct, if given the choice, as well as it could and did conclude that he was reckless because it was given no other choice.
Manslaughter is a class B felony. NDCC § 12.1-16-02. Negligent homicide is a class C felony. NDCC § 12.1-16-03. Conviction of a class B felony carries a penalty of a maximum of ten years in prison and a ten thousand dollar fine; a class C felony conviction carries a penalty of a maximum of five years in prison and a five thousand dollar fine. NDCC § 12.1-32-01. Wied-rich was sentenced to the maximum imprisonment, i.e., ten years. The prejudicial effect of the failure to instruct on negligent homicide is obvious. Rule 52(b), NDRCrimP.
In summary, this is not a Frey case. In Frey, the court did not, at the specific request of the defendant, instruct on the lesser-included offenses of murder. Only on appeal was the issue raised that the trial court should have so instructed because it also instructed on self-defense. Here the court, notwithstanding the objection of Wiedrich, instructed on the lesser-included offense of manslaughter. Wiedrich could have requested the instruction on negligent homicide but in view of his previous opposition to any lesser-included offense instructions, he was not required to do so. To construe his failure to do so under these circumstances as a waiver, such as in Frey, would be unwarranted and grossly unfair. Once the trial court determined to instruct on self-defense and to instruct on the lesser-included offense of manslaughter, it had an obligation, when the State failed to make the request, to also instruct on the lesser-included offense of negligent homicide, notwithstanding the lack of a request from Wiedrich to do so. Any other conclusion does violence to this Court’s holding in Leidholm and its holding in Frey, as well as the rationale for those holdings.
Wiedrich has raised other issues which are not necessary to the disposition of this appeal nor is it apparent that they will necessarily rise again at the new trial. We, therefore, do not decide nor discuss them. See e.g., Leidholm, supra; State v. Bergeron, 340 N.W.2d 51 (N.D.1983); Peck of Chehalis, Inc. v. C.K. of Western America, Inc., 304 N.W.2d 91 (N.D.1981).
Because the jury was instructed on self-defense but not instructed on the other lesser-included offenses of murder, we reverse the judgment of conviction and remand this matter to the trial court for a new trial.
GIERKE and LEVINE, JJ., concur.