explaining scope of rule
How later courts described this case
- explaining scope of rule
- discussing relationship between right to receive instruction and charging instrument
- “Since the defendant had notice as to all elements of lesser crimes necessarily included in the principal offense, no due process notice problems were involved in allowing a conviction on the lesser included offense.”
- generally, ORS 136.460 gives the state the right to receive jury instructions as to the crime of attempting to commit the charged offense
Written by the judges who cited it.
The opinion
DENECKE, J.,
specially concurring.
I concur because of my opinion that the majority is correct in concluding that the confusion which would result if the views of the dissenting opinion were adopted outweighs any possible additional fairness which might accrue to defendants.
I am influenced by the fact that the dissenting opinion is necessarily grounded upon the assumption that it is necessary to submit more lesser offenses to the jury because otherwise the jury is apt to disregard the instructions given it by the trial court. The dissent states:
“When the defendant asks for an instruction of an offense not charged, he does so to rebut and contradict the state’s version of what happened and what crime was committed. He is hopeful, of course, that the jury will accept his defense of not guilty, but short of that he wants a safeguard against the danger of losing if the jury is forced to decide between acquittal and guilt when there is not sufficient evidence to prove the crime charged but sufficient evidence to prove a lesser offense.”
*844 I understand the dissent to mean by this statement that if the jury is not instructed on a lesser, but not included, offense it may disregard the trial court’s instructions and convict the defendant of the charged offense even though the elements of the offense are not proved beyond a reasonable doubt. In civil cases we make the contrary assumption; that is, we assume that the jury has followed the instructions. For example, Rhodes v. Moore, 239 Or 454, 456 , 398 P2d 189 (1965). Perhaps this assumption is not completely well founded in criminal cases under these circumstances. I do not believe, however, that the contrary is so well established that fairness for the defendant requires, at the risk of confusion to the jury, the adoption of the rule advocated by the dissent.