(dissenting) :
I respectfully dissent.
At trial, Somerset sought to establish the defense of not guilty by reason of insanity. When all the evidence was in, the trial judge stated that he intended to charge guilty, guilty of voluntary manslaughter and not guilty by reason of insanity. Counsel for the defense then interjected that “not guilty” should also be charged. The trial judge, however, reasoned that since the defense never denied that Somerset gunned down his victim, that “not guilty” simply was not an appropriate charge. Counsel for the defense made no further objection at trial but Somerset now contends that the trial judge erred by failing to allow the jury to find as a possible verdict that of “not guilty”. I agree.
It was error to fail to submit “not guilty” as a possible verdict. See, State v. Griggs, 184 S. C. 304, 192 S. E. 360 (1937). Failure to so charge is an impermissible invasion of the fact-finding province of the jury. It is also inconsistent with the presumption of innocence a defendant carries until otherwise found guilty.
Raising insanity as an affirmative defense does not necessarily preclude the jury from finding a defendant not guilty. The defense simply may not be established; the prosecution might also fail to prove each element of the offense charged or to dispel all reasonable doubt. Under those circumstances a jury could return a verdict of not guilty. Commonwealth v. Edwards, 394 Pa. 335, 147 A. (2d) 313 (1959); People v. Stockwell, 52 Mich. App. 394, 217 N. W. (2d) 413 (1974).
I would reverse and remand for a new trial.
Gregory, J., concurs.