(dissenting).
This dissent is grounded on the belief that the following language of SDCL 23A-26-7 mandates that an instruction be given on a lesser degree of a crime whenever the higher degree of that same crime is charged:
Whenever a crime is distinguished by degrees, a jury, if it convicts an accused, *55shall find the degree of the crime of which he is guilty and include that finding in its verdict. When there is a reasonable ground of doubt as to which of two or more degrees an accused is guilty, he can be convicted of only the lowest degree.
The majority holds that notwithstanding this language a lesser degree instruction is only required when both prongs of the two-part test are satisfied. It leads the reader to believe this position is firmly grounded by precedent in the Woods and Waff decisions. That is far from correct. Gregg was charged with first-degree manslaughter and requested an instruction on the second degree of this crime. In both Woods and Waff the defendant was charged with murder and requested manslaughter instructions. The statute did not apply in those cases because manslaughter is a crime distinct from murder, while the statute expressly applies only to crimes “distinguished by degrees.” Because murder and manslaughter are not crimes “distinguished by degrees,” neither Woods nor Waff presented the issue now before this court. This court therefore was free to adopt the common law two-part test to apply in such situations. The Woods language cited by the majority which states “[i]f the evidence does not admit or support an instruction on a lesser degree of homicide, the trial court need not give it” is therefore pure dicta. In fact, the majority opinion in Woods nowhere even mentions the statute.
While this writer dissented in both Waff and Woods, they are nonetheless the decisions of this court. As noted in Waff, a consistent line of cases beginning as far back as 1905 in State v. Hubbard, 20 S.D. 148, 104 N.W. 1120, held that under SDCL 23A-26-7 and its predecessors, whenever a crime “distinguished by degrees” was charged it was reversible error to refuse to give an instruction on the lesser degree of that crime.* See also State v. Vassar, 279 N.W.2d 678 (S.D.1979); State v. Lewis, 90 S.D. 615, 244 N.W.2d 307 (1976); State v. Zobel, 81 S.D. 260, 134 N.W.2d 101, cert. denied, 382 U.S. 833, 86 S.Ct. 74, 15 L.Ed.2d 76 (1965); State v. Violett, 79 S.D. 292, 111 N.W.2d 598 (1961); State v. Painter, 70 S.D. 277, 17 N.W.2d 12 (1944) (citing State v. Stumbaugh, 28 S.D. 50, 132 N.W. 666 (1911)). Because of this precedent, Waff distinguished itself from these cases in which an instruction was requested on different degrees of the same crime:
This statute by its own terms applies only to crimes that are divided into degrees. Read correctly, State v. Hubbard merely holds that if an instruction is given on first-degree manslaughter the jury must also be given an instruction on second-degree manslaughter pursuant to the predecessor to SDCL 23A-26-7.
373 N.W.2d at 23. Waff overruled Hubbard and its progeny only to the extent inconsistent with the view expressed in Waff It did not overrule, and expressly distinguished, these earlier cases insofar as they held that a lesser degree instruction is mandatory when the higher degree of the same crime is charged. Id. I find it odd that the majority relies on precedent to support its opinion when that precedent by its own terms indicates it would reach the opposite conclusion.
The majority’s substitution of the two-part test for what I consider to be the clear mandate of the statute is disturbing, because instead of requiring a requested instruction whenever the higher degree is charged, all crimes distinguished by degrees will now be treated the same as any other offense charged when an instruction on a lesser crime is requested. The judicial gloss added to this statute by the majority’s opinion therefore renders the statute impotent. Furthermore, it cannot be argued that the statute assumes application of the two-part test. What is now SDCL 23A-26-7 was in effect before the turn of the century. See Penal Code 1877, § 9. This court did not begin applying the two-part test until Justice Zastrow’s concurrence in State v. Kafka, 264 N.W.2d 702, 705 (S.D.1978), over 100 years later. See Waff, 373 N.W.2d at 22.
*56This writing is not meant to imply that I believe the two-part test is otherwise inappropriate to determine when an instruction on a lesser crime is required. Instead, I believe it plainly makes great sense to deny an instruction on a lesser crime when the evidence could not support a finding of that crime. I have authored many opinions so holding. State v. Blakey, 332 N.W.2d 729 (S.D.1983); State v. Heumiller, 317 N.W.2d 126 (S.D.1982); State v. Pickering, 317 N.W.2d 926 (S.D.1982); State v. Oien, 302 N.W.2d 807 (S.D.1981). Nevertheless, if the legislature chooses to keep in effect a statute which requires an instruction in all cases on the lesser degree of a crime distinguished by degrees it has the right to do so. Unlike the majority, however, I will not reach the laudable result of having the two-part test apply when the legislature has mandated otherwise. Only the legislature can repeal SDCL 23A-26-7. As recently as St. Paul Ramsey v. Pennington County, 402 N.W.2d 340, 343 (S.D.1987), the author of this majority opinion stated this court would not construe a statute to reach a desired result “where such action would do violence to the plain meaning of the statute under consideration.” Where is that sentiment now?
I concur in the majority’s holding regarding issue two.
My dissents in Waff and Woods were founded upon SDCL 22-16-1, which defines murder and manslaughter as degrees of homicide. This position was consistent with the line of cases beginning with Hubbard and ending with Waff.