dissenting.
It is universally held that a lesser-ineluded offense instruction, whether requested by the prosecution or the defense, is appropriate only if the greater offense consists of every element of the lesser offense plus some other element or elements. One is prompted to .ask why the law, in formulating the limits upon a defendant’s right to an instruction on an offense other than that charged, should be concerned with this kind of logical exercise in the classification of elements of related crimes. It seems clear enough that the definition of a lesser-ineluded offense serves a purpose in establishing the limits to be placed upon the prosecution’s right to an instruction on a crime other than that charged, but it is difficult to understand what purpose the definition has in establishing the limits on the defendant’s right to such an instruction.
On constitutional grounds, the state is entitled to an instruction only with respect to those crimes of which the defendant has notice through the charges made in the indictment or information. When the *845state frames the complaint in terms of one crime, the defendant may be regarded as having received notice that he is being charged implicitly with the commission of any lesser crime which is necessarily included in the crime charged.① In this context, the lesser-included offense doctrine is simply an inquiry into the sufficiency of notice to the defendant.②
*846Traditional analysis, followed by the Court of Appeals, has turned this requirement upside down, saying in effect that if the state does not have a right to an instruction on an offense not charged, the defendant likewise is without such right. It is obvious that this mutuality principle is inappropriate as a basis for restricting the defendant’s right to instructions on crimes not charged because, where the defendant himself requests the instruction, notice to him is immaterial.
To continue limiting the defendant’s rights to rebut the prosecutor’s charge by reliance on defendant’s right to fair notice is indefensible. This results in cases in which the defendant is not allowed to put his factually supported alternative theory of the case before the jury either because it is conceivable that the lesser crime might have been committed in a way other than the way he is alleged to have committed it, or because the prosecutor chose to give the defendant the least possible notice in the accusatory instrument.
A good example of the absurdity of traditional analysis when applied to defendants is State v. Everett, 157 NW2d 144 (Iowa 1968), in which the defendant was charged with larceny of an automobile and requested an instruction on the lesser offense of op*847erating a motor vehicle without the owner’s consent, the majority upheld the denial of the request on the ground that the lesser crime required operating a vehicle while the greater crime could be committed merely by a taking, for example, towing away. This was considered persuasive even though the defendant was charged with taking by driving the auto away.
The minority would have allowed the instruction because the indictment specified that defendant had driven the car away. Even this somewhat more reasonable pleadings approach, however, remains, tied to the notice requirement of the indictment which is totally irrelevant to the reasons for the defendant’s request.
This inadequacy is well illustrated in State v. Nye, decided today. Defendant Nye was charged with burglary committed by entering a house with intent to commit sexual abuse therein. His request for an instruction on sexual abuse was denied below because sexual abuse is not included in burglary. Even under the more fact-oriented pleadings approach to the determination of what is lesser included, sexual abuse would not qualify because he was not charged with sexual abuse or its elements, but only with intending to commit it.
This result cannot be defended. Any reason one may cite for allowing a defendant to request an instruction on a lesser crime would apply as much to the underlying crime upon which a burglary is based as it would to an included offense. Yet traditional analysis, blinded by unjustifiable adherence to the idea of mutuality, operates to distinguish the two solely by reference to the requirement of notice to the defendant, even though the defendant makes the request.
This does not conclude the inquiry as to wheth*848er there may not he reasons for limiting the defendant’s right to instructions on crimes other than those charged. But if there is to be such a limitation, the basis for it should be identified. A satisfactory explanation is not given by stating simply that the instruction requested must be on a necessarily lesser-included offense.
Some interest must be served by the imposition of a limitation upon the defendant. If the defendant were to request an instruction on a crime the commission of which would in no respect rebut the state’s version of what occurred, the instruction would serve only to interject an irrelevant issue and should not be allowed.③ However, where the evidence supporting his version of what happened is inconsistent with the evidence which underlies the prosecution’s case but is consistent with a lesser but not included offense, there is no reason why the jury should not be permitted to decide that the defendant’s version of what happened is more plausible than that advanced by the state. The delineation of the charges should not be the state’s monopoly. In the interest of fairness to the defendant, the jury should be given the opportunity to escape the dilemma of acquitting a defendant guilty of a crime less than that charged, or finding him guilty of the crime charged but not made out by the state.
The interest of the prosecution is also served by avoiding such a choice because, if the jury elects to acquit the accused, the state will almost certainly have foreclosed the opportunity to charge the lesser offense by the rule laid down in State v. Brown, 262 Or 442, 497 P2d 1191 (1972), requiring all offenses arising out of one transaction to be prosecuted in one *849proceeding. In these circumstances, then, the interest of the state is advanced by permitting the jury in one proceeding to convict a guilty defendant who would otherwise go free.
At the stage in a criminal proceeding when the prosecutor drafts the accusatory instrument, frequently the facts then known leave it uncertain as to what crime or crimes were committed. However, the prosecutor has the exclusive power to select the crime with which he will charge the defendant. In some instances, selection might be made not because it is felt that the facts fit the crime selected, but because the prosecutor will be in a better position to plea bargain if the more serious offense is charged. But even where this is not a consideration affecting the prosecutor’s choice, his initial version of the criminal episode frequently will turn out to be mistaken and when all the evidence is in some crime other than that charged may more nearly fit the facts. When this occurs, there should be enough flexibility in our criminal procedures to permit the jury to decide whether a lesser offense was committed, if the defendant has no objection.
Perhaps in most eases the defendant would not seek an instruction on another offense unless it was in fact a lesser-included offense as traditionally defined. It seems likely that generally a defendant would not seek an instruction on a lesser offense unless the offense was (1) a lesser offense, and (2) the conviction for the lesser offense would preclude a conviction for the greater. Both of these conditions, of course, are met where the offense fits the traditional definition of a lesser-included offense. But there are other situations where such conditions are not met and *850yet the defendant may seek, and deserve to have, an instruction on an offense not charged.④
Where the defendant is charged with burglary and also the crime which he is alleged to have intended to commit in breaking and entering, he is vulnerable to conviction for both crimes. If he is charged only with burglary with the intent to commit theft, the crime of theft would not be a lesser-included offense and the defendant could not be convicted of the latter crime, nor could defendant request an instruction on theft. However, a defendant apprehended with goods of a value less than $200 and who defends on the ground that he neither entered the premises wrongfully nor stole the goods, might request an instruction permitting the jury to decide that he was guilty of second degree theft but not burglary. He would not be entitled to an instruction on second degree theft if the traditional rule is applied, because second degree theft is not a lesser-included offense within the crime of burglary. Is there any reason for precluding the submission of the issue of theft to the jury, it being understood that the jury could find the defendant guilty of both burglary and theft?⑤ I can see no reason for refusing such a request.
*851Nor is there any reason for denying defendant’s requested instruction in the present case. Defendant’s version of the facts supported conviction of the crime of theft by receiving, which is not a lesser-included offense within the crime of burglary. I can think of no reason for precluding the jury from consideration of the evidence on the issue of whether defendant committed theft by receiving rather than burglary.
The same option should be open to the defendant in any prosecution where the evidence rebutting the prosecution’s version of the crime charged would permit the jury to find defendant guilty of another offense. As I have suggested above, the instances may be few in which a defendant would request an instruction on a crime not constituting a lesser-included offense. However, I can think of various factual situations in which the request for such an instruction might be made. Thus, where the defendant is charged with criminal activity in drugs (ORS 167.-207), the evidence may warrant an instruction on criminal drug promotion (ORS 167.222). Cf., State v. Montigue, 20 Or App 228, 530 P2d 556 (1975). Or where defendant is charged with carrying a dangerous weapon with intent to use it (ORS 166.220(2)), the evidence might warrant an instruction on the lesser crime of carrying a concealed weapon (ORS 166.240). Similarly, one charged with knowingly having possession of a stolen motor vehicle (ORS 481.990(6)) might well request an instruction on the lesser crime of theft.
In the illustrations above I have assumed that the defendant would seek an instruction only where a lesser offense is sought to be submitted. It is possible that even where, the offense is not a lesser one, defendant may wish to have the jury pass upon the issue. If the evidence warrants the submission of that issue, there is no reason for withholding it from the jury.
*852The fear is expressed that if the defendant is not confined to lesser-inclnded offense instructions, he may insist upon instructions solely for the purpose of causing jury confusion or to create opportunities for reversible error. Thus, it is said that a defendant charged with murder might insist upon an instruction in the crime of jay-walking. A departure from the traditional rule confining the jury’s consideration to lesser-inclnded offenses does not mean that the defendant is to have an open-ended right to any instruction he requests.
I have already suggested a limitation on the defendant’s right to an instruction on an offense not charged in the accusatory instrument. The limitation stems from the principle recognized in this opinion that the defendant should have a right to share in the process of framing the charges submitted to the jury, if there is evidence supporting his version of the facts pointing to a crime not charged. When the defendant asks for an instruction of an offense not charged, he does so to rebut and contradict the state’s version of what happened and what crime was committed. He is hopeful, of course, that the jury will accept his defense of not guilty, but short of that he wants a safeguard against the danger of losing if the jury is forced to decide between acquittal and guilt when there is not sufficient evidence to prove the erime charged but sufficient evidence to prove a lesser offense.
To serve this legitimate end, the defendant’s instruction must, therefore, be inconsistent with the state’s instruction on the offense charged. The application of this test precludes instructions on extraneous offenses which do not serve to rebut the offense charged, thus providing a reasonably precise rule and avoiding the danger of giving the defendant a tool for confusion and possible reversible error. Although the *853rule I propose is not found in any other jurisdiction,⑥ I feel that it is required to bring the law relating to lesser-included offenses into a rational system of justice. The majority opinion raises the spectre of confusion which it sees as flowing from the adoption of the rule I propose. It is feared that the defendant will concoct a variety of explanations pointing to lesser offenses all of which will confuse the jury. One answer to this is that defendants in criminal cases already exhibit great ingenuity in presenting a considerable variety of evidence supporting their interpretation of the criminal episode out of which the charge arises. I doubt that any greater confusion will arise as a result of giving the defendant greater freedom in requesting instructions on lesser offenses. As is true in most cases where a change in criminal procedure is proposed, we do not know what complications may result from its adoption. I take the view that if a change is indicated we should take the chance of trying out a new rule; if it proves unworkable, we *854can always retract it or modify it. There should be room for experimentation in the judicial law-making process.
I would hold the defendant’s requested instruction should have been given and that the judgment should be reversed and remanded for a new trial.
Holman, J., joins in this opinion.
ORS 136.465, which provides, “In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the accusatory instrument or of an attempt to commit such crime” limits the state’s right to prosecute without notice to the defendant. It does not purport to limit the defendant’s right to instructions on crimes not charged in the accusatory instrument.
Originally, the lesser-included offense instruction was viewed primarily as serving the prosecution’s purpose of securing a conviction when the state’s proof of an element of the greater offense failed. Barnett, The Lesser-included Offense Doctrine: A Present Day Analysis for Practitioners, 5 Conn L Rev 255, 268, n. 74 (1972).
The determination of whether a lesser crime is included has not been uniform. A minority of jurisdictions employ the “statutory approach” which consists of an abstract examination of the elements of the two crimes without reference to either the allegations of the indictment or proof at trial. See, e.g., United States v. Carey, 475 F2d 1019, 1022 (9th Cir 1973):
■' * To be necessarily included in the greater offense the lesser offense must be such that it is ifiipossible to commit the greater without first having committed the lesser. The offense must not require some additional element not needed to constitute the greater. Moreover, the lesser offense must be included in, but not be encompassed by, the greater • offense.”
The majority of jurisdictions employ a “pleadings approach” which consists of examination of the accusatory instrument to determine whether its description of the manner in which the greater offense was committed contains allegations constituting a charge of the lesser offense. See, 4 Anderson, Wharton’s Criminal Law and Procedure, § 1888 (12th ed 1957).
A good example of the contrast between the two approaches is found in State v. Everett, 157 NW2d 144 (Iowa 1968), a five to four decision in which the majority applied the statutory approach and the minority applied the pleadings approach.
Oregon appears to have adopted the pleadings approach. ORS 136.465. See, State v. Kelly, 41 Or 26, 68 Pac 1 (1902). It *846should be noted that the pleadings approach does not guarantee to the defendant the right to instruction on a lesser crime included in the manner he is thought to have committed the crime charged. As a practical matter, the prosecutor retains the power to achieve the restrictive effect of the statutory approach by refraining from alleging the manner in which the crime was committed. See, State v. Shadley/Spender/Rowe, 16 Or App 113, 517 P2d 324 (1973) (charge simply of “furnishing” dangerous drugs sufficient to state a crime) and State v. Jim/White, 13 Or App 201, 506 P2d 462 (1973) (charge of theft, without additional specificity, sufficient to state a crime). Thus, the pleadings may be as restrictive as the statute if the prosecutor chooses to make them so.
Instructions are intended to aid the jury in its deliberations. Thus, an instruction on a lesser crime, like any other instruction, need not be aUowed merely because it is supported by the evidence. In addition, the instruction must be relevant to material issues and not tend needlessly to confuse the jury.
It should be noted that the manner in which formerly independent but related offenses are grouped into a single offense under Oregon’s present criminal code has the unintended effect of reducing the number of necessarily included offenses. The theft statute (ORS 164.015), for example, includes in one offense conduct which formerly constituted the separate crimes of larceny, larceny by trick, embezzlement and extortion. Offenses which would formerly have been necessarily included in one of the components of theft would not now necessarily be included in theft.
Under State v. Woolard, 259 Or 232, 484 P2d 314, 485 P2d 1194 (1971), a defendant could not be sentenced for both crimes. It is this fact that may prompt a defendant to request an instruction on a lesser but not included offense where burglary is charged, since he would risk nothing by the submission of the theft issue.
United States v. Whitaker, 447 F2d 314, 319 (D.C. Cir 1971) adopts a variation on the pleadings approach which may represent a move toward the approach I would adopt today. In Whitaker, the defendant was charged with burglary which conceivably could be committed without an unlawful entry. The Court of Appeals for the District of Columbia reversed, stating:
“Merely because a burglary can in rare circumstances be accomplished by means of an entry which is ‘permitted,’ does it follow that unlawful entry cannot be considered a lesser included offense of burglary in the usual case, as is this one, where the entry is undeniably unauthorized? * * *
“A more natural, realistic and sound interpretation of the scope of ‘lesser included offense,’ in line with our own views on the subject, is that defendant is entitled to invoke Rule 31(c) when a lesser offense is established by the evidence adduced at trial in proof of the greater offense, with the caveat that there must also be an ‘inherent’ relationship between the greater and lesser offenses, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense. [Footnote omitted.]”