“When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.”
How later courts described this case
- “When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.”
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, concurring. I agree with the majority opinion on all points except its reasoning on the trial court’s refusal to give an instruction on manslaughter as a lesser included offense. This case, factually, does not lend itself to a manslaughter instruction in my opinion, because there was not sufficient evidence in the record to support it. For that reason the trial judge did not abuse his discretion in denying the instruction.
The majority, however, bases affirmance in point four on the “skip rule.” The rationale for the skip rule, as explained by the majority, troubles me. What the majority is saying is if a jury convicts a defendant of an offense two grades more serious than the lesser offense, this “cures” the failure to give an instruction on that lesser offense. Such reasoning fails to consider the effect that an instruction on the lesser offense, not to mention defense counsel’s closing argument, could have on a jury and its verdict. The skip rule suggests after-the-fact rationalization and for that reason is a concept this court needs to examine more closely when the circumstances warrant it.