concurring. An issue not argued, but which arose in our conference, concerns the proper disposition of a case where a conviction is reversed because the trial court erroneously failed to instruct the jury on a lesser-included offense. The sufficiency of the evidence to support the greater offense of which the appellant was convicted was not challenged on appeal. The only relief requested by the appellant was a new trial. This is the relief granted in the majority opinion.
The dissent maintains that we can and should modify the judgment appealed from in this case and fix punishment in conformity with the permissible sentence for the lesser included offense for which no instruction was given, citing Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Richie v. State, 261 Ark. 7, 545 S.W.2d 638 (1977); Osborne v. State, 237 Ark. 170, 371 S.W.2d 518 (1963); Bailey v. State, 206 Ark. 121, 173 S.W.2d 1010 (1943); and Woodall v. State, 200 Ark. 665, 140 S.W.2d 424 (1940) as authority for such a disposition. It should, perhaps, be noted in passing that several of those cases are distinguishable from the situated presented in the case at bar. In Osborne, the punishment was reduced, but the attorney general was given seventeen days to file a request for a new trial if desired. 237 Ark. at 172. In both Ritchie and Bailey, the Supreme Court reversed and remanded unless the attorney general elected that the judgment be modified to impose sentence for the lesser offense. 261 Ark. at 9; 206 Ark. at 132. Hamilton is something of an anomoly: although it did result in the disposition urged by the dissent, it did so without citation to authority, see 262 Ark. at 375, and it has not been followed. I have found no case since 1977 which reduces punishment rather than remanding for new trial under the circumstances presented by the case at bar. Recent cases that do remand in this situation include Campbell v. State, 300 Ark. 606, 780 S.W.2d 567 (1989); Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1987); Johnson v. State, 28 Ark. App. 256, 773 S.W.2d 450 (1989); and Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).
Although I do not dispute that there is some authority for the proposition that we are authorized to modify the judgment and fix a reduced sentence when we reverse solely on the basis of error in failing to instruct the jury on a lesser-included offense, I submit that it is the better practice to reverse and remand for a new trial in such cases.
There is an inherent contradiction between a reversal based on failure to instruct the jury on a lesser included offense, and a disposition which forcloses consideration of that issue by a jury by judicial modification of the sentence. In this sense, the Bailey opinion is instructive. In discussing the merits of Bailey’s argument, the Supreme Court said”
It is not a question of whether we believe the defendant; the point is that he had a right to have his story submitted to the jury. That is the purpose of our jury system; and the court denied him this right; and for the failure to submit the issue of voluntary manslaughter to the jury this cause must be reversed.
106 Ark. at 130. Nevertheless, although the Bailey Court recognized the importance of allowing a criminal defendant to exercise his right to “have his story submitted to the jury” under our system of law, it ultimately denied Bailey this right by modifying the judgment and setting punishment, rather than remanding for a new trial in which both of those issues would be submitted to the jury. This same contradiction is apparent in Hamilton, which cited a case which remanded for a new trial as support for the proposition that it is “the prerogative of the jury to evaluate the conflicting evidence and resolve the issue [of a lesser included offense and its punishment].” Hamilton, supra, citing Milburn v. State, 260 Ark. 553, 542 S.W.2d 490 (1976). The Hamilton court, however, departed from Milburn by modifying the judgment to impose sentence on the lesser included offense without remand.
As noted, Arkansas appellate courts have since 1977 established a practice of reversing and remanding in cases similar to the one at bar. I believe that it would be unwise to depart from that long-standing practice, especially in a case where a new trial is the only remedy requested. The disposition favored by the dissent does promote judicial economy, but it does so, in may view, by discounting the importance of the jury as the arbiter of guilt and punishment under Arkansas law. Adoption of the dissenting viewpoint would mean that the Court’s error would cost the appellant his right to “have his story submitted to the jury.”
I concur.