(dissenting) .
I would reverse because of the trial court’s failure, on request of the defense, to give the jury a lesser offense instruction as to simple assault.
I
Fed.Rules Cr.Proc., Rule 31(c), 18 U. S.C.A., together with three decisions of the Supreme Court of the United States1 embody the primary prescription for the giving of a lesser included offense charge. It perhaps is worthy of note that while the principle of Rule 31(c) is expressed in language that is permissive in nature, at least one appellate court has recognized and held that a lesser offense instruction is a matter of right, provided, of course, that the conditions set forth in the Rule and the controlling decided cases are fully satisfied.2
The income tax evasion case of San-sone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965), affirming 334 F.2d 287, 294-295 (CA8 1964), contains an explication of the applicable standard. The Court stated:
“Thus, ‘ [i]n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie[s] it * * * [is] entitled to an instruction which would permit a finding of guilt of the lesser offense.’ * * * But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. *328* * * In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.”
The focus, then, centers on two factors: (1) evidence to support and justify the lesser offense charge, and (2) whether the greater offense requires the jury to find a disputed factual element not required for conviction of the lesser offense.3
Here, the charged greater offense was assault with intent to do great bodily harm by stabbing with a knife. The lesser offense of simple assault unquestionably does not require the element of intent embraced by the charged greater offense. This record clearly reveals that the defense introduced evidence designed to controvert the ability of the defendant to formulate the criminal intent required for conviction of the greater offense, as well as to question where and how the injury was inflicted. Thus, whether the defendant acted with the requisite intent and whether he used a dangerous weapon in the commission of the offense charged were questions for the jury. Because these instructions gave the jury no alternative but to convict on the greater offense or to acquit, and because part of the same evidence supportive of a verdict of the greater offense could have, under other and proper instructions, justified a verdict of the lesser offense, I would hold that the error in refusing to instruct on the lesser offense was prejudicial to the defendant and that, thereby, he was deprived of a fundamental Due Process right.
II
Whatever may be the soundness and contemporary vitality of the “guardian and ward” concept in other contexts of the relationship between the Indian and the federal government, I am unpersuaded by the notion that such a theory can furnish a plausible predicate for the conclusion that because Arnold Francis Kills Crow is an Indian there is a rational basis for extending him less than full Fifth Amendment Due Process treatment. I think, contrarily, that such a conclusion runs afoul of the well established principle of Supreme Court deci-sional law that the Fifth Amendment proscribes discrimination that is “so unjustifiable as to be violative of due process.” 4
III
The question of federal court jurisdiction would not detain me long. If a general grant of jurisdiction to the federal courts by the Congress is adequate to empower the District Court to try an Indian for certain criminal offenses enumerated therein, then it seems clear and elementary to me that the same statute is sufficient to empower the federal court, once having acquired such jurisdiction, to hear and determine the merits of any crime necessarily included within the enumerated offense. The majority asserts that this is not so and that jurisdiction over the lesser offense cannot arise by implication from the general jurisdictional grant.5 I reject that conclusion. Federal courts always have been deemed to possess the technical jurisdictional equipment essential to guard and protect fundamental rights.6 I am unable to discern a rational basis for departing from this tradition in this instance. I dissent.
. Sansone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) ; Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 100 L.Ed. 1013 (1956) and Stevenson v. United States, 162 U.S. 313, 322-323, 16 S.Ct. 839, 40 L.Ed. 980 (1896).
. Government of Virgin Islands v. Car-mona, 422 F.2d 95, 100 (CA 3 1970).
. Driscoll v. United States, 356 F.2d 324, 327 (OA 1 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968) (per euriam).
. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
. Accord, United States v. Davis, 429 F.2d 552, 554 (CA 8 1970) (dictum).
. See, e. g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).