State v. Hunter

WILKINS, District Judge

(dissenting) :

I dissent.

When counsel for the defendant requested the instruction on the included offense — that of simple assault — I believe the trial court should have given it.

The holdings of the Baritas and the Hyams cases, cited by the majority opinion, require that an instruction on the lesser and included offense be given. Concededly, these two Utah cases, in dicta, do allow “in very clear cases,” the refusal to give this instruction.

But a measurement of the whole fabric of legal reasoning and tone of Baritas and Hyams, it seems to me, compels a holding in this matter that the instruction requested should have been given.

Further, I believe that if the jury had the choice, as it did in this matter, of finding the defendant guilty or, more importantly, not guilty of the greater offense, then with stronger reason, it should have had this choice with respect to the lesser and included offense.