(dissenting).
As the majority notes, Black took the stand in his own behalf to explain to the jury his version of what occurred on this dismal day. Therefore, Black has admitted the killing of Hymore. This admission by Black and his other testimony clearly left one substantive issue for the jury to decide, namely, his mental state at the time of the shooting.1
Applying the legal/factual test in deciding whether or not a lesser included instruction should be given seems first to only require that a trial court have the ability to count to 1, 2, 3, then to 1, 2, 3, 4 and hold that, since the elements of the proposed lesser included instruction number 4, the defendant has no right to a lesser included instruction in a homicide case. In my opinion, this is nothing but a simplistic, mathematical test which deprives a trial court of the right to exercise its discretion after listening to all the evidence. The United States Supreme Court long ago held that a defendant in a homicide case was entitled to instruction on manslaughter in a murder case where the presence or absence of a mental state marked the boundary which separated the two crimes. Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896). The majority states that the crimes of murder and manslaughter have been changed or modified by statute on numerous occasions since 1896. One aspect of the crimes which has not changed is the element of premeditated design in murder and its absence as an element in manslaughter. The boundary line between first-degree murder and first-degree manslaughter in South Dakota is premeditated design to effect the death of a person. In *387murder, you have such design whereas in manslaughter there is no design to effect the death of a person.
The majority concludes by suggesting that common sense indicates when premeditated design is the issue, a lesser included should be given. I would go a step farther and adopt the holding in People v. Shaw, 646 P.2d 375 (Colo.1982), where the defendant was charged with first-degree murder after deliberation, felony murder, robbery, and attempted robbery. The defendant at the conclusion of the case requested an instruction on reckless manslaughter and criminally negligent homicide. The request was denied. On appeal, the Colorado Supreme Court, in reversing, held:
In Crawford v. People, 12 Colo. 290, 20 P. 769 (1888), this court reversed the defendant’s second degree murder conviction due to the trial court’s refusal to instruct on voluntary manslaughter and formulated what has since become basic doctrine:
“When there is any evidence whatever tending to establish a certain statutory grade of criminal homicide, and the court refuses to charge the jury with reference thereto, error is committed; but if there be a total absence of evidence relating to the particular grade disregarded, the charge cannot be successfully challenged on the ground of such omission.
$ sH * ⅜! * ¾!
“By statute the accused in criminal cases is permitted to become a witness, and when once upon the stand all the ordinary rules of evidence apply to him. He is subject to cross-examination, his testimony may be impeached, the circumstances under which he testifies may be considered, and perjury on his part can be as readily disclosed as in the case of other witnesses. The jury ought to give his testimony such credit and such weight as in their judgment shall, under all the circumstances, be proper. They may accept it as true or they may reject it as false. But, however incredible or unreasonable such testimony shall seem, the accused is entitled to an instruction upon the hypothesis that it may be true.
# * * * *
“We do not say that [manslaughter] should have been the verdict, or that the jury would have found differently had they been properly instructed. What we do say is that there was not an entire absence of evidence tending to establish the crime of manslaughter, and that defendant was entitled to an instruction with reference thereto. It is obviously impossible for us to hold that the error thus committed was without prejudice.” Id. at 292-94, 20 P. at 770-71.
Shaw, 646 P.2d at 379.
The defendant’s testimony in this case, although it may be improbable, unreasonable, or unbelievable, still provides evidence which if believed by a rational jury could result in a conviction of the lesser offense, namely, manslaughter in the first degree.2 In fact, the State has previously argued to this court in State v. Holloway, 482 N.W.2d 306 (S.D.1992), that based on the evidence in that case the trial court did not err in giving a lesser included instruction on manslaughter even though the “elements test" was not met.
A reading of this court’s decisions since the adoption of the legal/factual test on lesser included instructions in murder cases reveal that the giving or rejection of the proposed lesser included instruction rises or falls on the evidence and not the count. The majority suggests that disregarding the legal test and allowing manslaughter *388as a lesser included offense will overturn twelve years of precedent set by this court. This is simply not true. Of the decisions cited by the majority, which were actually homicide cases involving manslaughter instructions, not one was decided on the basis of the legal test. See State v. Tapio, 459 N.W.2d 406 (S.D.1990); State v. Gregg, 405 N.W.2d 49 (S.D.1987); State v. Woods, 874 N.W.2d 92 (S.D.1985); State v. Waff, 873 N.W.2d 18 (S.D.1985). In each of these cases, the legal test was ignored and the manslaughter instruction was excluded on the basis of the evidence or factual test. Id.
In State v. Waff, 373 N.W.2d 18, 22-23 (S.D.1985), where this court found no error in refusing to give the manslaughter instruction, the court stated:
Without deciding whether either the offense of first-degree manslaughter or of second-degree manslaughter, as defined by SDCL 22-16-15 and SDCL 22-16-20, supra, satisfied the legal test, it is clear beyond peradventure that neither offense satisfied the factual test....
It is true that State v. Hubbard makes the statement that manslaughter is included in the charge of murder, but in view of our holding today that statement is no longer invariably true. Accordingly, if in a given case, such as the one before us, the evidence does not admit of an instruction on first-degree manslaughter, the dictates of Hubbard and of SDCL 23A-26-7 are inapplicable. (Emphasis added.)
This court next held in State v. Woods, 374 N.W.2d 92, 95-96 (S.D.1985), as follows:
It is no longer the law in South Dakota that in all murder trials, the trial court must automatically instruct the jury as to all lesser degrees of homicide.... If the evidence does not admit or support an instruction on a lesser degree of homicide, the trial court need not give it....
* * * * * *
The trial court does not have to instruct on matters not supported or warranted by the evidence.... As stated above, this applies in homicide cases and if the evidence does not admit or support an instruction on a lesser degree of homicide, the trial court need not give it. (Citations omitted.) (Emphasis added.)
The evidence in this case demanded a manslaughter instruction.3 The trial courts should not be rendered powerless by the mere count portion of the legal test when the evidence dictates otherwise.4
This case as submitted to the jury was a classic all or nothing decision. In other words, the jury could either find Black guilty of murder or not guilty of murder. As previously stated, Black admitted the shooting and there was no question that Hymore died from the shots fired by Black. The record is devoid of any finding by the trial court that there was no basis for the jury to rationally acquit Black of the charged offense. This is understandable, since the trial court adhered to the legal test by an accurate counting of elements. Admittedly, it could be argued that Black was in a more favorable position because if the jury found no premeditated design to cause the death of Hymore, Black would then have been acquitted. Jurors are asked to perform a difficult, demanding task when sitting in judgment of a fellow *389man. The admission of Black and the evidence involving the efforts of he and his companion to dispose of Hymore’s body after the shooting certainly would have an impact on any twelve people called upon to perform this civic duty. I do not agree that Black was or could have been in a better position in this case based on the manner in which it was prosecuted by the state and agree with the holding in Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), where the United States Supreme Court held in a case dealing with the refusal to give a lesser included instruction:
Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.
412 U.S. at 212-13, 93 S.Ct. at 1997-98, 36 L.Ed.2d at 850 (emphasis in original).
It is easy to foresee a jury believing that Black was guilty of something. Yet, this jury was given only one option. Therefore, I would reverse and remand this case for a new trial, since Black did not receive a fair trial under this strict adherence to the legal/factual test where the evidence certainly warranted, if nothing else, an exception to the test.5 State v. Bennis, 457 N.W.2d 843 (S.D.1990).
. Black’s testimony was that he did not remember pulling the trigger, there was an unacceptable sexual advance on the part of Hymore, the shooting was accidental, the last thing he wanted was to cause the death of the decedent, and he did not take the decedent out to the country intending to kill him.
. In the recent Eighth Circuit decision of United States v. One Star, 979 F.2d 1319 (8th Cir.1992), the court reversed the trial court for having failed to grant defendant’s request for an involuntary manslaughter lesser included instruction where defendant was charged with second-degree murder. The court held: "It is well settled that a defendant is entitled to an instruction on any lesser included offense if the evidence would permit a jury to find him guilty of the lesser offense and to acquit him of the greater offense.” Id., at 1320 (citations omitted) (emphasis added).
. The majority holding in this case seems to accept the State's argument that the prosecution can foreclose the opportunity to seek a lesser included instruction by draftsmanship in the Information. To this legal theory, I say no because the trial court has the discretion to sua sponte give a lesser included instruction if the evidence warrants it, notwithstanding the charge contained in the formal pleading. See State v. Cook, 319 N.W.2d 809 (S.D.1982).
. This case is easily distinguishable from Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). In that case, the charge filed by government contained multiple counts of mail fraud. The defendant requested a lesser included jury instruction on the crime of tampering with an odometer. This case establishes whether a defendant in a murder/manslaughter contest will ever be able to have a lesser included instruction on manslaughter where the prosecution has elected to only charge murder. The authority established in the mail fraud/odometer tampering case should not foreclose a defendant's right to lesser included instruction in a murder case.
. I wholeheartedly agree that the State and a defendant are entitled to impartial treatment as stated in Justice Wuest's special writing. On the other hand, the holding allows the prosecution to cut off the opportunity for the trial courts to even delve into impartiality and unbalances the scales.