concurring.
On the merits of this case, the disagreement among members of the court is over whether the instructions given required acquittal first. If they did, all would agree they were *646erroneous. The dissent does not so read them. I do. I therefore join the majority. I write separately only to point out an issue likely to arise as a consequence of our decision today and to voice my own view as to how that issue should be resolved.
The present Uniform Criminal Jury Instruction on the problem we address today, UCrJI No. 1009 (revised December, 1986), provides:
“When you deliberate you should first consider the charged offense and, if you find the defendant not guilty on the charged offense, or if you cannot agree on a verdict on the charged offense, you should then consider the lesser included offense.” (Emphasis supplied.)
While the phrase in the instruction, “if you find the defendant not guilty on the charged offense,” may seem like “acquittal first” language already condemned by this court in State v. Allen, 301 Or 35, 39, 717 P2d 1178 (1986) and by the Court of Appeals in State v. Ogden, 35 Or App 91, 94-95, 580 P2d 1049 (1978), its effect is totally changed by the subsequent, emphasized language beginning with the word “or.” A jury is being given all three possibilities: conviction on the principal charge, acquittal on the principal charge, or failure of a requisite number of jurors to decide either way. In the second and third cases, a lesser included offense then should be considered.
In other words, the present UCrJI No. 1009 does clearly and correctly what the instruction in the present case failed to do. There doubtless will be litigation over that issue in the wake of our decision today, but I am confident that the Court of Appeals will have no difficulty in disposing of it.
I concur.