Howard v. State

The petition for certiorari was granted in this case so that we might consider whether it is error for the trial judge to refuse to charge the jury on criminal trespass upon the trial of an indictment for third degree burglary, where the proof is susceptible to the inference that the lesser offense had been committed.

As background, the petitioner was brought to trial on an indictment for third degree burglary, which charged that he broke into and entered a school building with the intent to steal. At the close of the proof, counsel for the petitioner requested that the jury be instructed concerning the offense of criminal trespass. The trial judge refused. Subsequently, the petitioner was convicted of an attempt to commit a felony. On appeal, the Court of Criminal Appeals affirmed.

The petitioner’s claim of error is grounded upon his belief that a defendant is entitled, on request, to an instruction on any offense that is made out in proving the indicted offense. This rule has been adopted, with variations, in several jurisdictions. See, e. g., People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974); State v. Boyenger, 95 Idaho 396, 509 P.2d 1317 (1973); United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971). We do not think it would be appropriate for us to follow these courts on this question, even assuming it would be possible for us to construe the applicable statutes so as to permit us to do so. The adoption of such a rule would permit the defendant to request instructions on various offenses not described in the indictment, offenses that could not be charged at the request of the state, for the latter would be restrained by the constitutional requirement that a defendant be given notice of the offenses with which he is charged. See Tennessee Constitution Article 1 § 14. While we most emphatically do not embrace the “sporting theory” of criminal justice, we believe that, in this instance, justice would be better served by a rule that more evenly balanced the rights of the defense and the prosecution than would that advanced by the petitioner. In particular, we are concerned that, if the petitioner’s theory is adopted, trial judges will receive “requests for instructions limited only by the imagination and ingenuity of the defendant,” to the ultimate confusion of the jury and frustration of the judicial process. State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975).

Other jurisdictions whose relevant statutes are similar to our own that have addressed this problem have, in general, adopted two positions in addition to the one described above. A number hold that an offense is necessarily included in, or a lesser included offense of, the indicted offense only if it is logically impossible to commit the indicted offense without committing the lesser offense, under any set of facts that might be imagined. See, e. g. State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978); State v. Redmon, 244 N.W.2d 792 (Iowa 1976); State v. Leeman, 291 A.2d 709 (Me.1972); Raymond v. State, 55 Wis.2d 482, 198 N.W.2d 351 (1972). Others hold that an offense is included in another if it is impossible to commit the greater offense in the manner in which that offense is set forth in the indictment without committing the lesser. See, e. g., Christie v. State, 580 P.2d 310 (Alaska 1978); State v. Neve, 174 Conn. 142, 384 A.2d 332 (1977); People v. St. Martin, 1 Cal.3d 524, 83 Cal.Rptr. 166, 463 P.2d 390 (1970); State v. Magai, 96 N.J.Super. 109, 232 A.2d 477 (1967).

This State has yet to adopt a definitive position on this question, although a number of decisions have used language, or reached results, that are consistent with one or the other of the two approaches just discussed. See, e. g., Wright v. State, 549 S.W.2d 682 (Tenn.1977); Spencer v. State, 501 S.W.2d 799 (Tenn.1973); Johnson v. State, 217 Tenn. 234, 397 S.W.2d 170 (1965). We believe that the better rule, and the one to be followed henceforth in this State, is the rule adopted implicitly by this court in Wright v. State, supra, that, in this context, an offense is necessarily included in another if the .elements of the greater offense, as those elements are set forth in the indictment, include, but are not congruent with, all the elements of the lesser. If there is evidence to support a conviction for such a lesser offense, it must be charged by the trial judge. T.C.A. § 40-2519; Whitwell v. State, 520 S.W.2d 338 (Tenn.1972).

Applying that rule to the instant case, it is apparent that the trial judge was correct in not instructing the jury concerning the crime of criminal trespass, for an element of that crime — that the defendant’s conduct be a breach of the peace — was not alleged in the indictment in the course of setting forth the elements of third degree burglary. Accordingly, the defendant’s conviction is affirmed.

PONES, BROCK and HARBISON, JJ., concur.

HENRY, C. J., dissents.

. Criminal trespass is now made an offense by statute, T.C.A. § 39-5305.

. In pertinent part those statutes provide:

T.C.A. § 40-2518: It shall be the duty of all judges ... in cases of criminal prosecutions ... to charge the jury as to all the law of each offense included in the indictment, without any request on the part of the defendant to do so.

T.C.A. § 40-2520: . . [Tjhe defendant may ... be found guilty of any offense the commission of which is necessarily included in that with which he is charged .

. Some commentators have sought to distinguish between “necessarily included” and “lesser included” offenses. See 8 Moore, Federal Practice § 31.03. However, for the most part, any such distinction has been ignored by the courts. See Olais-Castro v. United States, 416 F.2d 1155 (9th Cir. 1969); State v. Washington, 20 Or.App. 350, 531 P.2d 743 (1975).

. It should be noted that this definition of included offenses is not necessarily that used in the analysis of double jeopardy claims, as the rights involved are not the same. Compare State v. Black, 524 S.W.2d 913 (Tenn.1975).