McHam v. State , 2005 Okla. Crim. App. LEXIS 24 ( 2005 )

LUMPKIN, Vice-Presiding Judge:

Specially Concur.

¶ 1 In my separate writing to Shrum, I expressed concerns regarding this Court’s approach to determining when jury instructions on lesser included offenses are necessary. 991 P.2d at 1037. The current opinion begins to correct the confusion created by Shrum. While this opinion still leaves a lot to rectify from Shrum, it is a good first step. It is my belief that if trials are to seek truth and justice, then they are not a place for mere gamesmanship. The trial judge should instruct on the law that is applicable in the ease, and that includes lesser included offenses, i.e. “..., the commission of which is included in that with which he is charged, or of an attempt to commit the offense”. 22 O.S.2001, § 916. See also Shrum, 991 P.2d at 1038. By doing so the judge not only follows the law but also fulfills the judge’s oath of office.