Hardin v. State ( 1975 )

BUSSEY, Judge

(specially concurring):

The evidence adduced by the State in the instant case was sufficient to submit to the jury the question of the defendant’s guilt of Murder in the First Degree as alleged in the Information. In light of the evidence offered by the defendant that he committed the homicide while acting in necessary self-defense, it was likewise necessary for the trial court to instruct the jury on the lesser included offense of Manslaughter in the First Degree, and as we said in the case of Morgan v. State, Okl.Cr., 536 P.2d 952:

“We, therefore, further hold, that in every future prosecution for murder, wherein the evidence necessitates an instruction upon self-defense, the trial court shall also instruct upon voluntary or first degree manslaughter committed in the heat of passion as a lesser included offense. This instruction need not be requested and should be given irrespective of an objection thereto. . . .”

Clearly, in the instant case, the jury did not believe the evidence offered on behalf of the State in support of the charge of Murder in the First Degree, nor did they believe that the defendant should be acquitted on the complete defense of self-defense. Rather, under the facts presented they determined, as was their duty, that the defendant was guilty of Manslaughter in the First Degree.