stating "one offense is not `necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense" (internal quotation omitted)
How later courts described this case
- stating "one offense is not `necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense" (internal quotation omitted)
- reviewing the district court’s denial of the State’s request for a lesser-included offense instruction de novo
- finding that a lesser-included instruction is available in equal measure to the defense and the prosecutor
- “We hold, therefore, that the crime of voluntary manslaughter is a lesser included offense of the crime of second degree murder.”
Written by the judges who cited it.
The opinion
CARDINE, Justice,
concurring.
I concur with the observation that putting labels on rules has never been particularly helpful to understanding them. Therefore, I submit a brief statement of my understanding.
The trial judge must first determine if all the elements of the lesser offense are found within the greater; and, if so, is there some evidence that would rationally permit the jury to find the accused guilty of the lesser and not guilty of the greater offense. If such evidence is present, the instruction should be given.