(concurring in part, dissenting in part).
I dissent from that part of the majority which holds that the trial court erred in instructing the jury on second-degree murder.
In State v. Stumbaugh, 28 S.D. 50, 132 N.W. 666 (1911), the defendant was indicted for murder and convicted of manslaughter in the first degree. The first error urged by appellant was:
[T]he defendant having been charged in the information with the crime of murder, and the crime of manslaughter in either degree not having been alleged in the information, the court was not authorized in its charge to the jury to state to them that, if they found the defendant not guilty of the crime of murder, they could find him guilty of the lesser crime of manslaughter in the first or second degree.
Id. at 688. In Stumbaugh we held that the trial court correctly instructed on manslaughter, stating that any other view was “untenable.” The court went on to say that a defendant is held to notice that an indictment for murder “includes all the lower grades of felonious homicide” and that in homicide cases it is the duty of the trial court to instruct the jury that if they find the defendant innocent of . the crime charged they must consider the evidence relative to the other forms of homicide.
State v. Hubbard, 20 S.D. 148, 104 N.W. 1120 (1905), presented an inverse situation: the defendant was charged with murder, the trial court instructed on first-degree manslaughter but refused to instruct on second-degree manslaughter. We held that pursuant to statute (currently SDCL 23A-26-7) “. . . it is indispensable to the proper trial of a homicide case that the degree of the crime be ascertained and designated by the jury. The record must show this essential element of the verdict, in order to enable the court to pronounce judgment within the penalty attached in a crime of that degree.” Id. at 1121 (emphasis added). We held that upon trial for murder, even though the trial court believes the evidence only warrants conviction of the higher offense, all degrees of criminal homicide must be submitted to the jury. Hubbard emphasized that a conviction for second-degree manslaughter is legally responsive to a murder indictment, even though such verdict “might be illogical, unjust or unjustifiable under the evidence.” Id.
In 1980, murder was designated by our legislature as murder in the first or second degree. First-degree murder carries a Class A felony penalty. The lesser Class B felony penalty applies to second-degree murder. SDCL 22-16-12.1 SDCL 23A-*41626-7 requires the jury to find the degree of crime of which a defendant is guilty.
In State v. Painter, 70 S.D. 277, 17 N.W.2d 12 (1945), the defendant was charged with manslaughter in the first-degree but convicted of manslaughter in the second-degree. On appeal defendant urged that the trial court erred in giving a second-degree manslaughter instruction. We again emphatically held, citing Hubbard and Stumbaugh, that the trial court had a duty to instruct on second-degree manslaughter and it would have been reversible error not to do so.
These principles have been consistently reaffirmed in still later cases. In State v. Violett, 79 S.D. 292, 111 N.W.2d 598 (1961), the defendant was charged with murder and convicted of first-degree manslaughter. We said that:
An Information alleging murder embraces all the elements of the lesser crimes of manslaughter defined by statute. A jury may find defendant guilty of any offense the commission of which is necessarily involved in that with which he is charged. SDC 1960 Supp. 34.3669. It follows that if, as we have concluded, the evidence adduced was sufficient to have sustained a verdict of murder, it was sufficient to sustain the verdict of manslaughter.
Id. at 608 (emphasis added). In State v. Zobel, 81 S.D. 260, 134 N.W.2d 101 (1965), cert. den. 382 U.S. 833, 86 S.Ct. 74, 15 L.Ed.2d 76 (1965), defendant was charged with murder and convicted of second-degree manslaughter. In Zobel the issue was again raised whether a verdict of second-degree manslaughter could be returned on a charge of murder. Zobel affirmed the conviction, citing Hubbard, Stumbaugh and Painter. Hubbard’s holding that in homicide cases the jury’s verdict could be “illogical” is explained in Zobel: if the evidence supports the offense charged, a conviction on a lower degree will not be set aside. In State v. Vassar, 279 N.W.2d 678 (S.D.1979), we cited SDCL 23-45-22 (SDCL 23A-26-7) and Hubbard, Stumbaugh, Painter, Violett and Zobel for the rule that in homicide cases the trial court has a duty to instruct on degrees and lesser included offenses.2 Clearly, as this court stated in State v. Cook, 319 N.W.2d 809, 813 (S.D.1982), “. . . the defense does not have the option of precluding the court from carrying out this duty in hopes of forcing an ‘all or nothing’ verdict.”
State v. Reddington is not cited in any of the above cases and to my knowledge its holding on the instruction issue has, until now, reposed in the quiet sleep of the dead. If our choice is to unwrap this legal mummy or abide by nearly a century of living precedent, I opt to let the dead rest in peace.
I am hereby authorized to state that Justice DUNN joins in this concurrence in part and dissents in part.
. Death or life imprisonment for Class A felony, SDCL 22-6-1(1); life imprisonment for Class B felony, SDCL 22-6-1(2).
. This rule is seemingly ' peculiar to felony homicide and should not be confused with the lesser included tests applied to other criminal offenses. Stumbaugh.