State v. Dougherty , 1976 Utah LEXIS 831 ( 1976 )

CROCKETT, Justice

(concurring, with added comment):

I concur in the decision as representing the law of this State. However, sparing extended discussion thereon, for what I regard as good and sufficient reasons, it is my view that in most all instances the court should give an instruction on any lesser included offenses when such a conviction would be warranted by any reasonable view of the evidence.

This derives from Section 77-33-6, U.C. A.1953, which provides:

The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense.

And from a number of decisions in which this court has so declared, see e. g. State v. Johnson, 112 Utah 130, 185 P.2d 738; State v. Castillo, 23 Utah 2d 70, 457 P.2d 618; State v. Gillian, 23 Utah 2d 372, 463 P.2d 811; State v. Cobo, 90 Utah 89, 60 P.2d 952; State v. Poe, 21 Utah 2d 113, 411 P.2d 512.