State v. Williams

526 P.2d 1384, 270 Or. 152, 1974 Ore. LEXIS 288

Opinions

HOWELL, J.

The defendant was indicted for burglary in the first degree and robbery in the first degree. He was convicted of burglary in the first degree and robbery in the second degree. The conviction was affirmed by the Court of Appeals, 16 Or App 48, 517 P2d 311 (1973). We granted review to consider the question of whether the trial court must instruct the jury on all lesser included offenses whenever requested to do so by the defendant.

At the close of the trial,

Footnotes

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① defendant requested the court to instruct the jury with respect to the crime of criminal trespass (ORS 164.255) as a lesser included offense within the crime of burglary (ORS 164.225).② The trial court refused to give the instruction on criminal trespass, and on appeal the Court of Appeals sustained this action.

ORS 136.660, relating to lesser included offenses, states:

“In all cases, the defendant may he found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment or of an attempt to commit such crime.”③

The Court of Appeals held that the trial court is not required to instruct on lesser included offenses where there are no disputed issues of fact which warrant the submission of the lesser included offenses to the jury.

The rule that the trial judge must instruct on lesser included offenses only when justified by the evidence or inferences to he drawn from the evidence is followed by the majority of state and federal courts. 54 Mich L R 707 (1956). The rule has been followed in Oregon in several previous decisions. State v. Stoneberg, 15 Or App 444, 517 P2d 333 (1973); State v. Atkins, 14 Or App 603, 513 P2d 1191 (1973); State v. Boucher, 13 Or App 339, 509 P2d 1228 (1972).

The United States Supreme Court on several occasions has rejected any requirement that a judge must instruct on all lesser included offenses if so requested.

In Sparf and Hansen v. United States, 156 US 51, 15 S Ct 273, 39 L Ed 343 (1895), the court refused to reverse a criminal conviction for failure to give an instruction on a lesser included offense. The court stated:

“* * # a verdict of guilty of an offence less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or of simple assault. * * *” 156 US at 63-64.

In Sansone v. United States, 380 US 343, 351, 85 S Ct 1004, 13 L Ed 2d 882 (1965), the United States Supreme Court held that a lesser included offense instruction is only proper where there is a “disputed factual element.” The defendant is entitled to an instruction on lesser included offenses only if “there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of * * * [the greater offense] have not been proved, all the elements of one or more lesser offenses have been, * * *"

The federal circuit court in Driscoll v. United States, 356 F2d 324, 327-28 (1st Cir 1966), vacated on other grounds, 390 US 202, 88 S Ct 899, 19 L Ed 2d 1034 (1968), interpreted Sansone as follows:

“We take Sansone to mean that when the government has made out a compelling case, uncontroverted on the evidence, on an element required for the charged offense but not for the lesser-ineluded offense, there is a duty on defendant to come forward with some evidence on that issue if he wishes to have the benefit of a lesser-ineluded offense charge. To put it another way, while a judge cannot prevent a jury from rejecting the prosecution’s entire case, he is not obligated, under these circumstances, to assist a jury in coming to an irrational conclusion of partial acceptance and partial rejection of the prosecution’s case by giving a lesser-ineluded offense instruction. Two prerequisites seem vital: that there heno factual dispute and that a finding contrary to the only evidence on the issue would he irrational(Emphasis supplied.)

In Driscoll, the government presented direct evidence of the greater offense through three witnesses. The court stated:

“* * * The record before us discloses no efforts to impeach, contradict, or explain this testimony. All we have are the pleas of not guilty.

“We do not think that these pleas, standing alone, create the contradiction in evidence required by Sansone, supra. It is true that, at the outset of the case, the pleas of not guilty created an ultimate issue as to willfulness to be resolved by the jury. It is also true that by their silence in the face of specific and direct evidence on the issue of willfulness, appellants did not forfeit their right to have the jury instructed that willfulness must be proven beyond a reasonable doubt. But we think it is equally true that by remaining mute in the face of such evidence and relying solely on their pleas of not guilty, appellants did not create such a ‘disputed factual element’ in the sense that entitled them to an instruction for a lesser-included offense. [Citations omitted.]” 356 F2d at 327-328.

The state of Iowa has a statute almost identical to OHS 136.660. In State v. Merrill, 242 Iowa 1156, 49 NW2d 547 (1951), the Iowa Supreme Court held their statute to mean that before an instruction on lesser included offenses is required, it must be justified by the evidence. Quoting from another Iowa ease, State v. Ockij, 165 Iowa 237, 145 NW 486 (1914), the court stated:

“ ‘The jury ought not to be allowed to speculate upon a supposed state of facts, of which there is no evidence, in order that they may reduce a serious crime to a trifling misdemeanor. To say that a man may use a deadly weapon and inflict a wound such [as is described here], * * *, and that he may be convicted of a simple assault or assault and battery, would be to make a mockery of the penal statutes and of the enforcement of the law.’ ” 49 NW2d at 549.

The argument is made that a jury in a criminal case is entitled to accept in part and to reject in part the state’s evidence. The same argument was made to and rejected by the courts in Kennedy v. Coyle, 352 F2d 867 (7th Cir 1965); United States v. Markis, 352 F2d 860 (2d Cir 1965); Driscoll v. United States, supra; and State v. Hicks, 241 NC 156, 84 SE2d 545 (1954). While there is nothing to prevent a jury, as the trier of facts, from rejecting the prosecution’s case in full and finding the defendant not guilty, this does not justify instructions on unsupported lesser included offenses. “The lesser-included offense charge is not required simply because the jury could exercise its power of acquitting on the greater charge for no reason at all * * *. There must be a rational basis for its doing so.” United States v. Markis, supra at 867.

The dissenting opinion in the instant case suggests that the efficient administration of trials in criminal eases would be enhanced if the trial court automatically instructed on all lesser included offenses because it would be less time consuming than the “judicial time involved in making the decision to grant or refuse requested instructions” on lesser included offenses. We believe the contrary would be true. If the dissenting opinion were adopted, it would mean a trial judge must instruct on all included offenses — and they could be numerous — even though the evidence of the greater offense was uncontroverted and not capable of any inference which could reduce the greater -offense.

However, the problem does not focus on the judicial administration of the trial .of criminal cases. The question here presented is the same as in all cases, civil or criminal — is there evidence, or possible inferences to be drawn from the evidence, sufficient to require submission of the charge to the jury? If the evidence is insufficient, then the court does not submit the charge to the jury for its consideration. The same rule of evidence should apply when the trial court is instructing the jury on lesser included offenses.

We agree with the decision of the Court of Appeals that a trial judge is not required to instruct on lesser included offenses where there are no disputed issues of fact which warrant the submission of the lesser included offenses to the jury.

Affirmed.

A detailed statement of the facts underlying the prosecution of the charge can be found in the companion case of State v. Stoneberg, 15 Or App 444, 517 P2d 333 (1973). However, in Stoneberg, the defense introduced some evidence that the burglary had been committed as a prank. No such evidence was introduced in the trial of this case.

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The parties agree that under the Oregon Criminal Code criminal trespass is a lesser included offense embraced within the crime of burglary.

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Rule 31 (c) of the Federal Rules of Criminal Procedure states:

“Conviction of Less Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.”