dissenting.
I must respectfully dissent from the views of the majority of the court in this case. I am convinced that the court in this instance improvidently allowed the filing of the bill of exceptions. I would so hold and would not treat with the merits of this case.
I must point out that there was only one case involving the State of Wyoming against Ronald Selig. While there were two trials, the first of which ended in a mistrial, and the second of which resulted in a verdict of not guilty, the lesser-included-offense instructions which the State of Wyoming contends should have been given in the earlier trial in fact were given in the last trial. I therefore raise the question, where is the error of which the State of Wyoming complains?
I am concerned about another proposition with respect to the granting of the bill of exceptions. The chronology of events set forth in the majority opinion demonstrates that the bill of exceptions was allowed by this court prior to the completion of the case. It is my view that § 7-12-105, W.S. 1977, in referring to the judgment of the court, assumes that the case has been completed in the trial court before the bill of exceptions is to be pursued. It well may be that the State of Wyoming will regard this case as precedent for presenting to this court any number of adverse rulings prior to trial in criminal cases, and I see no reason why the State should not feel justified in so doing. I would surmise, however, that very few of them will be acted upon.
With respect to the proposition that the first trial judge did not give the lesser-included-offense instructions, but the second trial judge did, I perceive that this dichotomy of action was justified by antethetical rulings by the two trial judges on the admissibility of Selig’s inculpatory statement. This statement was obtained from Selig while he was hospitalized after being injured in a car wreck. While he was represented by counsel, his counsel was not present. In the first trial, the admission of *794Selig was available to the State of Wyoming because the trial judge had denied a motion to suppress. Consequently the evi-dentiary matter in that trial was different from the evidentiary matter in the second trial in which the trial judge granted the motion to suppress Selig’s admission. Because of this ruling Selig did not testify in the second trial while he had taken the stand in the first trial. This difference in testimony well may bring the case within the rule that “[T]he trial court should only give such instructions as arise from the evidence and that when the evidence shows the defendant is either guilty or not guilty of the higher grade of the offense, the court is not required to instruct on the lesser offense.” Oldham v. State, Wyo., 534 P.2d 107, 109 (1975). See also Neilson v. State, Wyo., 599 P.2d 1326 (1979); Jones v. State, Wyo., 580 P.2d 1150 (1978); Richmond v. State, Wyo., 554 P.2d 1217 (1976), reh. denied 550 P.2d 509 (1977); and Ross v. State, 16 Wyo. 285, 93 P. 299, reh. denied 94 P. 217 (1908). It is to be noted that this line of authority is recognized and accepted in the majority opinion. I would submit that this may have been the rule applicable in the first trial, while it was not applicable in the trial resulting in the finding of not guilty.
Recognizing that there may in fact have been no error entitling the State of Wyoming to complain pursuant to the bill-of-exceptions procedure, the majority opinion justifies treating with the matter under the proposition that since this issue was resolved in a contrary fashion by each of two judges, it is desirable to establish a positive answer to the issue. The positive answer to the issue then is that if the five factors outlined in United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir. 1980), cert. denied 446 U.S. 967, 100 S.Ct. 2947, 64 L.Ed.2d 827 (1980), are present the lesser-inc.luded-of-fense instructions should be given to the jury, unless the rule of Neilson v. State, supra, Jones v. State, supra, Richmond v. State, supra, Oldham v. State, supra, and Ross v. State, supra, is applicable. The “positive” answer is that the giving or not giving of the lesser-included-offense instructions depends upon the analysis of the evidence by the trial judge, and he must be afforded some discretion in making his ruling. State v. Goetinna, 61 Wyo. 420, 158 P.2d 865 (1945); State v. Gonzales, 46 Wyo. 52, 23 P.2d 354 (1933). I cannot regard that as a definitive answer.
I see some additional mischief in what the court has done. I cannot help but believe that a trial judge in the State of Wyoming is likely to give the lesser-included-offense instructions in every homicide case in which either party requests them. I perceive that as resulting in a substantial dilution of the capital punishment statute which the legislature has adopted. Section 6-4-101, W.S.1977. I believe that in many instances the jury is likely to opt for a conviction of an offense which does not result in capital punishment if that course is authorized by the instructions of the court. State v. Goettina, supra. I also perceive this as damaging to the interests of some defendants in homicide cases. While empirical data cannot be presented for obvious reasons, most scholars and skilled practitioners of the law believe that when the alternatives of lesser-included offenses are made available there is a high probability that a jury will compromise on a conviction of some lesser-included offense. In a case in which the jury might acquit if it were forced to deal with the issue of guilty or not guilty of the higher offense, the opportunity to compromise is disadvantageous to the defendant.