where there is not evidence to support a lower degree of the crime charged, or an included offense, the court has no right to ask the jury to consider the issue
How later courts described this case
- where there is not evidence to support a lower degree of the crime charged, or an included offense, the court has no right to ask the jury to consider the issue
- No error occurred where trial judge instructed jury that it was not to consider pardon and parole
- where no evidence supports requested second-degree murder instruction, unnecessary to instruct thereon
Written by the judges who cited it.
The opinion
BUSSEY, Judge,
dissenting:
I respectfully dissent. When the judge ascertained that the verdict was not a proper one, i. e., non-unanimous, he complied with the provisions of 22 O.S.1971, § 922 by sending the jury back out to deliberate.
The only proper verdict returned in the penalty stage of this case was the verdict of death, and it was amply supported by the evidence presented in aggravation punishment by the State.