dissenting in part.
I dissent from that part of the majority opinion finding no error in the trial court’s refusal to instruct upon the crime of Escape in the Third Degree.
The majority correctly states that ORS 136.465 is the statute governing lesser included offenses and then asserts that ORS 136.460 is a "similar” statute. Those statutes read as follows:
"Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.” ORS 136.460.
"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.” ORS 136.465.
I disagree that ORS 136.460 is a "similar” statute. By its very terms ORS 136.460 is not concerned with lesser included offenses.
The majority discusses State v. Williams, 270 Or 152, 526 P2d 1384 (1974); State v. Washington, 273 Or 829, 543 P2d 1058 (1975); and State v. Duffy, 135 Or 290, 295 P 953 (1931). I submit that none of those cases was concerned with ORS 136.460. In Williams the defendant was charged with Burglary in the First Degree and complained of the refusal of the trial court to instruct upon Criminal Trespass in the First Degree. This court’s opinion is completely devoid of any *477mention of ORS 136.460 (then numbered ORS 136.650). The opinion was confined to application of ORS 136.465 (then numbered ORS 136.660).
Likewise, in Washington the defendant was charged with Burglary in the First Degree, and complained of the trial court’s refusal to instruct upon the crime of Theft in the Second Degree. In Washington the court does mention, in passing, ORS 136.460 but the case was not concerned with application of that statute, and the discussion of the case was in terms of the provisions of ORS 136.465.
There is nothing in Duffy to indicate this court was dealing with "a crime consisting of different degrees.” As a matter of fact the crime there charged was not a crime consisting of different degrees; therefore, there was no situation calling for the application of ORS 136.460. In Duffy (he defendant complained of the failure to instruct upon the offense of an attempt to commit the crime actually charged. There was no reason to discuss Section 13-946, Oregon Code 1930 (the then version of ORS 136.460), and the court did not discuss that statute at all. Anything the court might have said concerning that statute would have been dictum. As a matter of fact, the defendant had not requested that the trial court instruct on "any lesser grades” of the crime charged. Duffyh&s nothing to do with the statute in question. Duffy vise concerned only with whether the court, on its own volition, should have instructed upon the crime of "attempt” to commit the crime charged.
The majority then turns to State v. Wilson, 182 Or 681, 189 P2d 403 (1948). In that case the defendant was indicted for murder in the first degree under the felony-murder statute and complained upon appeal of the refusal of the trial court to instruct "as to the degrees of homicide under the statutes of Oregon.” It is true that the court mentions both § 26-947, *478O.C.L.A. (now ORS 136.460) and § 26-948, O.C.L.A. (now ORS 136.465) in discussing that assignment of error; however, the court, just as does the majority here, fails to recognize that the two sections deal with different concepts. Moreover, the opinion is tied up with matters peculiar to the fact that the crime charged was not "classical” murder in the first degree, i.e., an intentional homicide committed with premeditation and deliberation and with malice aforethought. Rather, the successful prosecution of the charge of first degree murder depended upon a showing that the homicide was committed while defendant was attempting robbery of the victim. There is nothing to indicate that the court was concerned with an analysis of the very language of the statute. Instead the court flung itself into a discussion of case law with no attempt to inform the reader whether the cases dealt with statutes having the same language as does ORS 136.460.
The terms of ORS 136.460 are relatively clear. The legislature has made a policy decision that where a defendant is charged with a crime consisting of different degrees, the jury is empowered to find him not guilty of the degree charged and guilty of any inferior degree. Here defendant was charged with Escape in the Second Degree and asked that the jury be allowed to consider whether he was not guilty of that charge and guilty of Escape in the Third Degree and thereby exercise the power legislatively granted. The majority analyzes his claim of error as if he sought an instruction on a lesser included offense. That analysis is simply not in point. Defendant was entitled to have the jury instructed as he requested.
I dissent from that portion of the opinion.