concurring in part; dissenting in part.
I agree with the majority that defendant’s motion to suppress was properly denied and that his conviction in CA A28773 should be affirmed. I disagree, however, that his conviction in CA A27008 for delivery of a controlled substance must be reversed for failure to give an instruction on gratuitous delivery under ORS 475.992(2) (b).
As the majority points out, the charge against defendant was that he “* * * did unlawfully and knowingly deliver a controlled substance in Schedule I to-wit: marijuana, for consideration * * Accordingly, the pleadings do not give notice of the intent by the prosecution to seek conviction for gratuitous delivery. Therefore, the test to determine whether this defendant was entitled to an instruction on a lesser included offense is whether the lesser crime is necessarily included within the statutory definition of the greater crime. In other words, in proving the elements of the greater crime, the state would necessarily have to prove the lesser crime. State v. Washington, 273 Or 829, 836, 543 P2d 1058 (1975). Given that test, it is clear that a violation of ORS 475.992(2) (b) is not a lesser included offense of ORS 475.992(2)(a). That is so, because proof that consideration was paid necessarily precludes a conviction of a violation for delivery for no consideration.
As the Supreme Court noted in State v. Washington, supra, 273 Or at 836:
“Historically, the lesser included offense doctrine originated as a rule which was developed to assist the prosecution *183in obtaining a conviction when the evidence produced at trial was insufficient as to one or more elements of the offense actually charged in the indictment. * * *”
Unless the test in Washington is changed and something like the quoted material is adopted as the test, gratuitous delivery is not a lesser included offense.
This result may be required as a consequence of legislative inadvertence, but it nevertheless is required. Because delivery for no consideration is not a lesser included offense, defendant was not entitled to the instruction he requested. If the jury had believed him, he was entitled to be acquitted of the crime charged. I would affirm both convictions.
Van Hoomissen, J., joins in this opinion.