Ex Parte Hubbard

405 So. 2d 695 (1981)

Ex parte J. B. HUBBARD.
(In re: J. B. Hubbard, alias, etc. v. State of Alabama).

78-688.

Supreme Court of Alabama.

August 28, 1981.

Joel L. Sogol, Walter P. Crownover and Ralph Burroughs, Tuscaloosa, for petitioner.

Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for respondent.

ON SECOND APPLICATION FOR REHEARING

PER CURIAM.

The judgment rendered pursuant to the opinion of this Court dated March 7, 1980, and the denial of the application for rehearing dated April 4, 1980, both reported at 382 So. 2d 597, are set aside; the judgment of the Court of Criminal Appeals, 382 So. 2d 577, is reversed; and the cause is remanded to the Court of Criminal Appeals on the authority of Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980); Beck v. State, 396 So. 2d 645 (Ala.1980); Ritter v. State, 403 So. 2d 154 (Ala.1981); and Reed v. State, 407 So. 2d 162 (Ala.1981).

REVERSED AND REMANDED.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, 405 So. 2d 695.

MADDOX, JONES and ADAMS, JJ. (concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So. 2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required "on any lesser included offense supported by the evidence," Beck v. State, 396 So. 2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 632 (footnote 7) 100 S. Ct. 2382, 2386 (footnote 7), 65 L. Ed. 2d 392 (1980).