(dissenting).
Under the settled law of this State, the trial court should have given the defendant’s proposed instruction that the jury could find him guilty of either first degree manslaughter or second degree manslaughter if they concluded he was not guilty of the offense of murder in the first degree as charged.
It is clear from a long line of decisions starting with State v. Hubbard, 20 S.D. 148, 104 N.W. 1120 (S.D.1905), to State v. Lohnes, 324 N.W.2d 409 (S.D.1982), cert. denied, 459 U.S. 1226 (1983), that murder and manslaughter and any subdivision of either are by statute degrees of criminal homicide. They constitute what SDCL § 23A-26-7 refers to as a crime distinguished by degrees and concerns which degree of a crime the jury must find if it convicts. It follows that the trial court must instruct the jury accordingly. State v. Stumbaugh, 28 S.D. 50, 132 N.W. 666 (1911). It is reversible error when the trial court refuses to charge the jury on all degrees of criminal homicide lesser than the degree of criminal homicide with which the defendant is charged. State v. Horn, 21 S.D. 237, 239, 111 N.W. 552, 552 (1907) (citing Hubbard, supra.) See also State v. Painter, 70 S.D. 277, 17 N.W.2d 12 (1944).
*29The desire of the majority to obtain a uniform rule for application of lesser included offenses is laudable. However, some of the comments in the majority opinion cause me to wonder if we are reading the same statutes. The majority opinion interpretation that the requirements of SDCL § 23A-26-7 apply only to the degrees of murder, if Murder I is charged, or the degrees of manslaughter, if Manslaughter I is charged, does not agree with what the statute expressly states. That SDCL § 23A-26-7 applies to all degrees of criminal homicide is clearly indicated by the statutory scheme for homicide.
First, the “degrees of homicide” are defined: murder, manslaughter, excusable homicide, or justifiable homicide. SDCL § 22-16-1 (1979) (origin in Penal Code of 1877). Subsequent statutes define and further divide those degrees. See SDCL ch. 22-16. Second, all subsequent statutes throughout that chapter consistently use the terms “degree of homicide,” SDCL § 22-16-3, and “homicide is_” SDCL §§ 22-16-4, -6, -7, -8, -9, -15, -30, -31, -34, -35 (emphasis supplied). This scheme was continued in 1980 when murder was subdivided into two degrees. SDCL §§ 22-16-4, -7, -9. Therefore, the degrees or divisions of criminal homicide include two degrees of murder and two degrees of manslaughter. To conclude that SDCL § 23A-26-7 applies only to the degrees of murder or only to the degrees of manslaughter overlooks these obvious expressions of legislative intent. The definition of homicide does include excusable and justifiable homicide, but these are not crimes. Since they are not an offense, they cannot be an included offense. They have no place in a charge of criminal homicide and are not involved in the instructions unless raised as a defense.
Other jurisdictions agree with our historical conclusion that degrees of homicide include both murder and manslaughter. See, e.g., State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975) and Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953). Florida, with a statute similar to SDCL § 23A-26-7,1 has consistently held that the jury must be instructed on all degrees of murder from the degree charged and below, as well as manslaughter. Rodriguez v. State, 443 So.2d 286 (Fla. 3rd Dist.Ct.App.1983) (citing, inter alia, Lewis v. State 377 So.2d 640 (Fla.1979) and Martin v. State, 342 So.2d 501 (Fla.1977)). In homicide cases, the trial judge “appropriately instruet[s] the jury as to all degrees of murder, manslaughter, justifiable homicide, and excusable homicide, all having to do with the death of the victim.” Sadler v. State, 222 So.2d 797, 799 (Fla.2d Dist.Ct.App.1969) (emphasis original). The rationale behind their statute, like ours, was clearly recognized. When a trial judge unilaterally determines that there is no evidence to instruct the jury on a lesser offense, he “takes a most critical evidentiary matter from the proper province of the jury and vests it improperly as a matter of law with the trial judge.” Hand v. State, 199 So.2d 100, 102 (Fla.1967).
The South Dakota Legislature has followed the same rationale and has given the jury the duty to determine which degree of a crime, if any, the defendant has committed:
[T]he mandate of [SDCL § 23A-26-7] is that the jury must find the degree, and the court must instruct as to all matters of law essential to an intelligent consideration of the facts as they may reasonably appear to the respective members of the jury, they might have been misled to the prejudice of the accused by refusing to give the requested instruction. Under our statute it is indispensable to the proper trial of a homicide case that the degree of the crime be ascertained and designated by the jury. ... The crime of manslaughter is necessarily included in that of murder, and in all cases where a party is put upon his trial for murder in *30the first degree all the degrees of criminal homicide should be explained and submitted to the jury.
Hubbard at 150-51, 104 N.W. at 1121 (quoting in latter State v. Clemons, 51 Iowa 274, 1 N.W. 546, 550 (1879)) (emphasis supplied). The statute is clear. Our interpretation of it has been consistent. To now hold otherwise is to circumvent legislative intent.
I would reverse.
. Fla.R.Crim.P. Rule 3.490 (1975). Their statute was amended in 1981 to include a factor which considers the evidence presented before an instruction is required. See Fla.R.Crim.P. Rule 3.490 (Supp.1985).