(concurring in part, concurring in result in part).
I concur in the majority disposition of the suppression issue but I write specially to concur in the result on the instruction issue. I cannot agree with the rather cavalier treatment afforded SDCL 23A-26-7 when the majority suggests that the statute does not mandate instruction as to lesser degree of the offense charged. How a jury is expected to “find the degree of the crime” and “have reasonable doubt as to which of two or more degrees an accused is guilty,” without instructions by the court defining the lesser degrees, is beyond my comprehension. It is the province of the jury to determine the facts and apply the law as instructed by the court. 47 Am. Jur.2d Jury § 14 (1969).
It is the province of the legislature to define criminal acts and to fix the punishment therefore. State v. Soto, 378 N.W.2d 625 (Minn.1985); State v. Moore, 286 N.W.2d 274 (N.D.1979), cert. denied 446 U.S. 943, 100 S.Ct. 2170, 64 L.Ed.2d 799. *54The essential part of SDCL 23A-26-7 has been part of the criminal law of this state since territorial days. Perhaps part of the problem is that the definitions of crimes, even those that are still divided into degrees, have become more complex. Furthermore, the concept of a lesser included offense does not necessarily jibe with the concept of an offense of a lesser degree. The lesser included offense may or may not be defined as an offense of a lesser degree, and vice versa.
But, that is not to say that it is appropriate to give a lesser degree offense instruction in every case. Article VI, section 7 of the South Dakota Constitution gives to an accused in all criminal prosecutions the right “to demand the nature and cause of the accusation against him; to have a copy thereof.” This requires that in the indictment or information the accused be advised of the offense charged with reasonable certainty so that he may prepare his defense. State v. Blue Fox Bar, 80 S.D. 565, 128 N.W.2d 561 (1964).
This court has previously held that it is error for the trial court to instruct on a lesser degree offense, the elements of which are not included in the offense upon which he stood. In State v. Lohnes, 324 N.W.2d 409 (S.D.1982), the defendant was charged with first-degree murder and the trial court, over defendant’s objections, instructed on the offense of second-degree murder. In reversing the trial court, we relied on State v. Reddington, 7 S.D. 368, 64 N.W. 170 (1885), which stands for the proposition that a man cannot be convicted of an offense, the elements of which were not included in the charge upon which he stood trial.
In our judgment it was error to charge the jury that in order to convict, it was not necessary for the state to make out such a case as it had set out in the indictment.
One purpose of an indictment is to apprise the defendant of what he is charged with having done that constitutes a criminal offense so that he may be prepared to defend himself at the trial.
We termed this reasoning to be of constitutional dimension, pointing out the pertinent part of article VI, section 7 set out above. The elements of the lesser degree murder, as defined by SDCL 22-16-7, are different than the offense with which Lohnes was charged, that being first degree murder as defined by SDCL 22-16-4. Then Chief Justice Fosheim, clinging fiercely to what he considers the clear mandate of the statute, dissented from that proposition citing subsequent cases which he admitted did not cite Reddington. He neglected to mention that they also failed to mention the constitutional provision. He may have been correct when he termed Reddington a “legal mummy,” but I submit that the constitutional requirement is still alive and breathing. Obviously, if a lesser included offense cannot contain any elements not found in the major offense under the test first proposed by Justice Zastrow in his special concurrence in State v. Kafka, 264 N.W.2d 702, 705 (S.D.1978), and adopted by this court in State v. Oien, 302 N.W.2d 807, 809 (S.D.1981), any instruction that meets that test will pass constitutional muster. With respect to the statutory mandate of SDCL 23A-26-7, it simply cannot be constitutionally applied with respect to offenses wherein the lesser degree offense contains elements not found in the greater degree offense on which the defendant is standing trial.
It is for that reason that I agree that the trial court did not have to instruct the jury on the second degree manslaughter offense, inasmuch as it contained an element not necessarily included in the first degree manslaughter charge, to-wit: a reckless killing. I would affirm the trial court on this issue.