(dissenting).
Appellant was acquitted on a charge of Second-Degree Rape. He was convicted of an Attempt on said charge. Appeal is taken from (1) an Order denying a Motion for New Trial; (2) a Motion for Judgment of Acquittal Notwithstanding the Verdict; and (3) a Judgment and Sentence confining appellant to the State Penitentiary for two years.
Three people were in the domicile: victim, appellant, and Melissa Goll. Victim testified to an absolute forcible rape with physical penetration; appellant testified he was solicited for sexual intercourse but never went beyond an act of preparation, namely, pulling his shorts and pants down. Melissa Goll, an unbiased witness, testified that (1) victim instigated appellant going to the bedroom with her, (2) victim told appellant “she wanted to jump his bones,” (3) appellant did not respond thereto, (4) victim “grabbed [appellant] by the hand and took him in the bedroom,” and (5) victim “just walked over to him and grabbed his hand.”
Melissa Goll, victim’s teenage friend, repudiated and contradicted victim’s entire story under oath — to include the act of claimed intercourse supposedly lasting 5 to 10 minutes after she entered the room. Rather, this third-party witness testified that she saw victim “under the covers with her hands on top of the covers” and appellant “was sitting on the bed taking his pants off.” This same witness testified that immediately after she entered the bedroom, the victim and appellant walked out of the bedroom. “[N]othing happened after that,” she swore under oath.
Thus, it is understandable why the jury acquitted appellant of Second-Degree Rape. The jury obviously did not believe the vie-*16tim. Should not, therefore, this Court similarly reject the testimony of facts upon which the State relies to moor the trial court’s instruction to the jury on the lesser-included offense of Attempted Second-Degree Rape?
In a word: It was Second-Degree Rape under the testimony of the victim or, clearly, there was no crime at all.
My Brothers, is the ink dry on State v. Waff, 373 N.W.2d 18, 26-30 (S.D.1985) (Henderson, J., concurring; Fosheim, C.J., dissenting)? 1
In sum, the evidence presented by the State could rationally have supported only a conviction of the offenses charged in the indictment. Defendant was either guilty of those two charges or he was guilty of nothing. Accordingly, the trial court did not err in refusing defendant’s requested instructions on first and second-degree manslaughter. (Emphasis supplied mine.)
Waff, 373 N.W.2d at 22. Or is the ink dry on State v. Woods, 374 N.W.2d 92 (S.D.1985)? In Woods, we held: The defendant either committed the crime of murder or he was not guilty of any crime.
We now are faced with the same old shotgun advocacy of the State: You, the trial judge, are permitted to always instruct on any and all offenses which are lesser included to the highest one charged, in any given case. Fallacious? Of course! Mr. Trial Judge should only instruct on the evidence in the case. This is well-settled law in South Dakota. See State v. Fender, 358 N.W.2d 248, 252 (S.D.1984); State v. Huber, 356 N.W.2d 468, 472 (S.D.1984); Miller v. State, 338 N.W.2d 673, 676 (S.D.1983); State v. Chamley, 310 N.W.2d 153, 155 (S.D.1981); State v. Oien, 302 N.W.2d 807, 809 (S.D.1981); State v. Curtis, 298 N.W.2d 807, 810 (S.D.1980); State v. Wilson, 297 N.W.2d 477, 482 (S.D.1980); State v. Feuillerat, 292 N.W.2d 326, 334 (S.D. 1980); and State v. Bean, 265 N.W.2d 886, 891 (S.D.1978).
As the lesser-included offense, i.e., Attempted Second-Degree Rape, is not supported by legally sufficient evidence, the trial court erred in so instructing the jury. The entire force of the prosecutor’s case was that the appellant accomplished an act of sexual intercourse with a young girl who could not, by law, consent. Furthermore, the State sought to establish that appellant’s actions were forceful, if not savage.2 The prosecution never tried to establish that appellant attempted to commit a rape. Appellant is convicted via a compromise. A compromise resulting from a jury instruction which absolutely should not have been given. See collected cases above and Waff and Woods. Justice should not be compromised.
Under State v. Oien, 302 N.W.2d at 808, a lesser-included offense instruction can only be given if the evidence and law applied thereto warrant a conviction upon the convicted offense. This is still the law of this state. Hence, I would reverse. It was rape or no crime at all. Attempted Second-Degree Rape was simply not in the proof. When it is not in the proof, it should not be instructed upon.
An unbiased witness, a close friend of the victim, testified that the victim was the aggressor and solicitor of an act of intercourse and the attempt was committed on her part. True, his intention, from out of his own lips, was to have intercourse with the victim after she suggested the act and led him to the bedroom. However, that did not take place; furthermore, if his testimony is to be used against him that he intended to have sexual intercourse with the victim, then he should also have the benefit of his testimony that he changed his mind and immediately dressed, whereupon nothing occurred between himself and the victim. *17Clearly, the most powerful witness in this case was Melissa Goll and her strongest statement to implicate the appellant of an act toward the commission of a crime, was appellant “was sitting on the bed taking his pants off.” Again, it should be noted that appellant was acquitted on the charge of Second-Degree Rape and he is totally innocent, in the eyes of the law, of such an allegation. Perhaps there were intentions on the part of appellant to commit statutory rape, but these intentions did not rise to the level of an overt act, i.e., an attempt of Second-Degree Rape. Preparation, yes; attempt, no. Melissa Goll testified that the victim was “under the covers with her hands on top of the covers”; this indicated preparation and arranging the means for the offense was triggered by the victim, not the appellant, per the testimony of Melissa Goll. If the jury believed Melissa Goll, and obviously it did, then her testimony was accepted that the appellant “was sitting on the bed taking his pants off.” This, unquestionably, was preparation and under Jury Instruction No. 13, appellant might well have devised, obtained, or arranged the means for a commission of Second-Degree Rape, yet that would not be sufficient to constitute an attempt. There must have been acts beyond that in order that an attempt to commit such a crime was actually commenced toward the doing of the criminal deed.
When one considers the jury instruction mistakes in this case and the fact that appellant, through his counsel, objected to the addition of deleted words — strenuously asserting that it was improper to give the jury a new instruction long after the case was submitted to the jury, it strikes me as being highly unfair for this Court to assert that the appellant, impliedly, quietly acquiesced in the giving of an amended, handwritten instruction to the jury. Indeed, the handwriting of the trial judge did specifically highlight the very crime of which appellant was convicted. See photostatic copy of Jury Instruction No. 13, attached hereto and by this reference made a part hereof, with judge’s handwritten notes inserted, which pertain to an attempt to commit a crime. This instruction stuck out like a sore thumb and it was no wonder that the defense lawyer fought the instruction. “[Ijnstructions should not give undue emphasis to any phase of the case favorable to either side and even correct statements of law if unduly emphasized may constitute reversible error.” Jorgenson v. Dronebarger, 82 S.D. 213, 219, 143 N.W.2d 869, 872 (1966) (emphasis supplied mine). See also, Mueller v. Mueller, 88 S.D. 446, 221 N.W.2d 39 (1974).
This jury was confused and troubled by the language in these instructions and, particularly, on Attempted Second-Degree Rape (which lesser-included instruction should never have been submitted to the jury in the first instance). Discovering that 15 words were omitted from the Pattern Jury Instruction, the trial judge stated that he was going to insert those words. He expressed: “1 am going to take the Instruction that was given to them and in my own handwriting insert those words.” Defense counsel immediately objected to this alteration. This is found at Trial Transcript, pages 215-16. Thereafter, the jury was informed of these handwritten changes by the judge. We now must examine whether or not Jury Instruction No. 13, as amended and modified by his handwriting, is a separate error of magnitude in instructing the jury.
The judge’s phrase “but acts of a person who intends to commit a crime will constitute an attempt” was obviously a material change to the instruction; reading it alone, when it protruded from the balance of the instruction, the language did not state the proper elements which render an “act” legally sufficient to constitute an attempt. If one reads SDCL 22-4-1, the elements defining a punishable “attempt” are set forth. This particular statute refers to an “act toward the commission of the crime....” The words added by the trial judge give undue emphasis to intent. Please take note that acts “toward the commission of the crime” are not included. In Jury Instructions Nos. 11 and 12, statutory language was employed stating that a *18“direct act in the execution of such specific intent and toward the execution of the crime” were required elements or at least the required element for an attempt. However, the judge’s handwritten notes in Jury Instruction No. 13, took this away from Jury Instructions Nos. 11 and 12. Certainly any act or acts of a person, as suggested by the trial judge in his handwriting, would not constitute an “attempt” once “intent” had been established. It appears to this author that Jury Instruction No. 13 thus confused the jury and did mislead the jury as to the correct law. A lesser-degree of proof was created by the judge’s handwriting and it stood out for the jury to read — all by itself — which prompted the jury toward returning a verdict of guilty on an attempt. Expressing it another way, the court’s handwriting inferred that mere “acts of a person who intends to commit a crime will constitute an attempt” was legally sufficient to find an attempt, did thereby eradicate the absolute requirements that an act had to be a “direct” act — which had to be beyond mere preparation — and an act “toward the commission of the crime.” In effect, as long as the defendant was shown to have evidenced an intent, any act whatsoever was enough to permit the jury to convict this defendant.3 The trial judge founded his unilateral modification on SDCL 15-6-51(c), which gives him the authority to give oral instructions. This was wrong because counsel had settled the instructions and a trial judge cannot give oral instructions after written instructions have been settled. Furthermore, as mandated by SDCL 15-6-51(c), there was no consent given to oral instructions or a waiver thereof.
Good precedent? Or bad precedent? What have we here? Let us reflect. In the milieu of the world and the hubbub of the day, reflection can be a sanctuary. Must counsel hereafter follow the reading of the jury instructions, word for word, lest the trial judge change the instruction? Indeed, this would be awkward and cumbersome. Counsel at this time is readying arguments, coagulating key testimony, honing a final plea to the jury. Counsel has the right to rely on instructions that are settled. If the judge decides he wants to change the instructions (as he is reading them to the jury), he/she had better inform both counsel as to what he is about to do (at Bench Conference — quietly—and not for the jury to hear) so that counsel may retire to Chambers and thereupon, anew, settle the instructions again, and make a record. This was not done on Jury Instruction No. 5, although I note that it involved but one word. There is no more tender time in a trial than the settling of instructions. Great pressure exists on the trial judge and counsel. Somewhere in the courthouse, the jury is waiting and wondering why there is a delay. A trial judge and counsel work late into the night, oftentimes, to get the jury instructions exactly as they mutually agree or totally disagree. If there is disagreement, it is noted, in detail, in the record. We require counsel to make specific objections as to why the trial court is committing error. How, then, during instructions to the jury, can a judge logically, legally, and spontaneously decide that the preparation in counsels’ office, hours in the courthouse, and brain power exerted before a Court Reporter in “protecting the record” can be cast aside?
In summation, appellant was acquitted of that with which he was charged; appellant was convicted of that which was never in the proof. Considering the errors on instructions of law, which I have detailed above, a fair trial, in my opinion, was prevented. “A trial court must present only those issues to the jury which are supported by competent evidence and set forth the applicable law.” State v. Johnson, 320 N.W.2d 142, 147 (S.D.1982). A defendant is constitutionally entitled to a fair trial before an impartial jury. State v. Webb, 251 N.W.2d 687 (S.D.1977). Hence, I respectfully dissent.
*19[[Image here]]
. The majority opinion depends on an 11-year-old case in the State of Michigan, namely, People v. Karasek, 63 Mich.App. 706, 234 N.W.2d 761 (1975); whereas, this dissent is aligned with two well-reasoned 1985 South Dakota Supreme Court cases.
. The State’s case totally crumbled under the testimony of Melissa Goll, a witness present at the scene of the alleged crime, and the jury so held.
. When a verdict of guilt or innocence was mulled — under this set of facts — as to where "preparation” ended and "attempt” began, this handwritten instruction unquestionably had a devastating effect on the jury verdict. It tipped the scales.