(concurring specially).
Although I agree that the conviction should be affirmed, I do not agree that the trial court erred in refusing to give an instruction on simple assault. Even if the offense of simple assault is necessarily included within the offense of shooting with intent to kill, the evidence did not warrant a conviction on that lesser offense, and thus the trial court was correct in refusing to give the requested instruction. State v. Kapelino, 20 S.D. 591, 108 N.W. 335; State v. Crofutt, 76 S.D. 77, 72 N.W.2d 435; State v. O’Connor, 86 S.D. 294, 194 N.W.2d 246.