concurring.
If a lesser offense is "inherently" or "factually" included in a charged crime, and a prima facie case of the charged crime has been presented by the State, the State or the defendant should be entitled to an instruction on such lesser offense. In my opinion, long held, Jones v. State (1982), Ind, 488 N.E.2d 972 (DeBruler, J., concurring in result), the additional requirement of having trial judges also evaluate the evidence, lacks significant value in the administration of the criminal law. The requirement itself rests upon the mistaken belief that unless judges restrict the use of lesser included offense instructions, based upon each particular judge's view of the value of the State's prima facie case, juries will seize upon such instructions and render evil "compromise verdicts." Hester v. State (1974), 262 Ind. 284, 815 N.E.2d 351; Hash v. State (1972), 258 Ind. 692, 284 N.E.2d 770. I did not share in this distrust of juries as a trial judge, and I do not share it now as a judge of this Court. Juries have the right to disbelieve all or any part of the State's prima facie case. Juries strive mightily to follow the law as given them by the court. Very occasionally, a jury may act out of passion or prejudice. Such rare events do not justify the costs to the criminal justice system of regular judicial intervention of the sort required by this rule.
I renew consideration of this bedrock matter, although I deem myself bound by stare decisis to interpret and uphold the rule, because this case is undoubtedly a turning point case.